author: BELL, Chief Justice.

text:
    M. E. SHIFLETT, Appellant, v. ASSOCIATED OIL & GAS CO., Appellee.
    No. 15062.
    Court of Civil Appeals of Texas. Houston.
    Feb. 23, 1967.
    Rehearing Denied March 16, 1967.
    Percy Foreman, Levert J. Able, Miller B. Walker, Jr., Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Austin C. Wilson, Carolyn Dineen Randall, Houston, for appellee.
   BELL, Chief Justice.

This is an appeal from an order quashing a writ of attachment levied on certain real estate in Harris County belonging to appellee.

Appellee has filed a motion to dismiss the appeal on the ground that the order is interlocutory and not appealable since there is no rule or statute authorizing an appeal.

From the record, we find that appellant on September 8, 1966, filed his second amended original petition asserting a cause of action for damages against appellee and other parties. In it appellant asserts that appellee “is a foreign corporation * * * with a permit to do business in Texas.” At another point in said petition appellant alleges “service is not necessary upon * * * Associated Oil & Gas Co. and Walter L. Maguire, as they have been previously served and have answered herein.”

On September 21, 1966, in the same cause appellant filed his affidavit for attachment alleging that appellee was indebted to him, his demand being for $500,-000.00. He further alleges appellee is a foreign corporation; that the attachment is not sued out for the purpose of injuring or harassing appellee; and that appellant will probably lose his debt unless the attachment issues. The writ issued and was levied on real estate in Harris County belonging to appellee.

We need not notice the grounds set out in appellee’s motion to quash as we are not passing on whether the court erred in sustaining the motion.

We think it material, however, in passing on whether we have jurisdiction to observe that this is not a case where appellant employed attachment as a means of obtaining jurisdiction over the person and the court in quashing the writ dismisses the case for want of jurisdiction over the person. Jurisdiction over appellee has been obtained by service of citation and by ap-pellee’s having answered. The cause of action asserted remains on the docket awaiting trial on the merits.

In Texas, except where some rule or statute authorizes an appeal from an interlocutory order there is no right of appeal. Henderson v. Shell Oil Company, Inc., 182 S.W.2d 994 (S.Ct.); Carpenter Body Works, Inc. v. McCulley, 389 S.W.2d 331 (CCA), writ ref. An appeal lies only from a final judgment. Vernon’s Ann.Civ.St. Article 2249. A final judgment is one that finally determines all issues and disposes of all parties in a case.

This Court, in the case of Smith v. Miller et al., Tex.Civ.App., 285 S.W.2d 413, held an order overruling a motion to quash an attachment was not appealable because it was interlocutory and no rule or statute authorized an appeal.

The reason for such a holding is that an attachment is wholly ancillary to and a part of the main suit. It is finally disposed of in a final judgment in the main suit.

There are Texas cases, as appellant contends, holding that an order quashing a writ of garnishment is appealable. See Proctor v. Associates Inv. Co., 257 S.W.2d 324 (Tex.Civ.App.), n. w. h.; Roberts v. Stoneham, 31 S.W.2d 856 (Tex.Civ.App.), n. w. h.; and Walton & Stockton v. Corpus Christi Nat. Bank, 185 S.W. 369 (Tex.Civ.App.), n. w. h. Appellant likens these cases to those where, as in this case, a writ of attachment has been quashed. There is, however, a fundamental difference between the two proceedings.

The writ of attachment in this case exists only as a part of the main suit.

A garnishment proceeding, while ancillary to the main suit in the sense that no funds impounded can be applied in favor of a garnishor until the garnishor obtains a final judgment in the main suit, is a separate suit in the sense that it is docketed separately and there is at least one different party, that is, the garnishee. There may be adverse claimants to the impounded funds who would be entitled to intervene. In such separately styled and docketed proceeding the court finally disposes of the parties and issues in the proceeding. See discussion in Proctor v. Associates Inv. Co., supra; Roberts v. Stoneham, supra, and Phillips v. Interstate Securities Co. of Texas, 250 S.W.2d 444 (CCA), n. w. h.

It is also to be observed that Rule 659, Texas Rules of Civil Procedure, expressly provides that the case in garnishment shall be docketed in the name of the plaintiff as plaintiff and of the garnishee as defendant. We find no such rule or statute so providing with regard to attachments. Therefore, when a garnishment proceeding is disposed of it finally disposes of the issues and parties in the separately styled and docketed proceeding. This is not true in an attachment proceeding such as we have involved here.

Appeal dismissed.


source: Caselaw Access Project

author: DENTON, Chief Justice.

license: Public Domain

text:
    Ike P. TURNER, Appellant, v. Vester V. CLARK, Appellee.
    No. 7685.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 27, 1967.
    Rehearing Denied March 27, 1967.

      John J. Watts, Odessa, James D. Cunningham, Odessa, of counsel, for appellant.
    Cade & Bowlin, Lubbock, James O. Cade, Lubbock, of counsel, for appellee.
   DENTON, Chief Justice.

This is a damage suit arising out of an automobile-pedestrian collision. The case was submitted to the jury and on the jury verdict the trial court’s judgment denied recovery by the plaintiff. Plaintiff’s motion to disregard the jury finding that he failed to keep a proper lookout and that such failure was a proximate cause of the collision was overruled. Plaintiff’s appeal is based on the contention the findings are not supported by any evidence and are against the great weight and preponderance of the evidence.

Plaintiff was acting as a flagman for a construction company engaged in the construction of a highway in the o'útskirts of Lubbock, Texas. The defendant, Vester V. Clark, was driving his automobile in a northwesterly direction proceeding into Lubbock through the construction area. The plaintiff was standing on the highway approximately three feet from the paved edge with a red flag in his hand. The defendant’s car struck plaintiff and he landed upon the hood of the defendant’s automobile, and then fell to the pavement several feet away. The jury found the defendant failed to keep a proper lookout; that such failure was the proximate cause of the collision; that the defendant failed to properly apply his brakes, and that such failure was a proximate cause of the collision; that the failure of the defendant to turn the vehicle to the left was not negligence; that plaintiff’s failure to step over to the side of the road when he saw the defendant approaching was not negligence; that the plaintiff failed to keep a proper lookout; and that such failure was a proximate cause of the collision; and that the collision was not the result of an unavoidable accident. Appellant’s points of error attack the failure of the trial court to disregard the jury finding of contributory negligence. He contends there is no evidence to support such findings and alternatively, the findings are against the great weight and preponderance of the evidence. These contentions require a review of the evidence.

The accident occurred on an open highway, a portion of which was under construction just outside of the city limits of Lubbock. As the defendant’s car approached the area he was confronted with signs along the side of the highway reading: “Slow”, “Construction, drive carefully”, “Observe warning signs state law”, and another setting the speed at 35 m. p. h. There were no barricades across the highway but there were wooden fence-like structures perpendicular to the road set back some three or four feet from the highway’s edge. Clark, an 83-year old retired medical doctor at the time of the accident, saw the signs and knew the construction was going on. As he approached the construction area from the south he slowed down and saw a grader or scraper up ahead of him moving across the highway from west to east. When he saw the grader he testified he slowed his speed to approximately 5 m. p. h. “and was just watching the top of it that’s all I could see, the top of the grader”. Clark admitted he did not see Turner and did not realize he had hit him until he heard a “thud” and saw Turner land on the hood of his car. Turner fell to the highway and Clark stopped his car in “probably a foot or 6 or 8 inches”. He noticed a flag on the hood after the impact. He testified the grader was about 50 to 100 feet ahead of him, along the east side of the highway going in the same direction as Clark’s car when he heard the thud. He further testified there was no traffic in the immediate area at the time of the collision, but there was dust in the area from the grader’s operation. Clark testified he had excellent vision after a cataract operation on one eye.

Another witness, W. H. Rogers, testified by deposition. He was proceeding approximately 150 feet ahead of the Clark car immediately prior to the collision. He testified “I just drove right on through there, just right easy” and “I saw this guy standing there with a flag in his hand”. He saw Turner “about right at the edge” of the pavement. As he proceeded northwest he heard the impact and looked through his rear view mirror and saw Turner on the hood of Clark’s car with the flag in his hand. He testified he had clear vision back to the scene of the collision.

The only other witness was the plaintiff himself. He began flagging traffic at 9:00 a. m. on the morning of the accident and continued until he was struck about 10:45 a. m. He described the flag as red, 18 inches square and attached to a wooden stick three feet long. His duties as a flagman were: “to stop the traffic, watch the scrapers after they come by coming toward Lubbock, and stop traffic so they would not run into the scrapers and to facilitate the scrapers crossing the highway”. He stated his objective was to protect not only the public from the equipment, but the men on the construction equipment. His customary position for flagging was to stand about three feet from the pavement edge, facing the oncoming traffic. He was in this position just prior to the collision. He saw the Clark car 150 to 200 feet away and stated that he gave Clark a signal to stop as the scraper was coming down the shoulder of the highway with a load of dirt. This signal was given by having “my flag in my hand out in this manner (demonstrating), the flag in the right hand and my left hand up”. He then testified that he “glanced around to see if our scrapers had crossed the road and when he turned back he was about 10 or 12 feet in front of me”. Then he said: “I guess I just froze". Turner “supposed” Clark would stop and had no reason to think he would not stop. Other drivers had stopped that morning when he had flagged them down. He said there was “just a film of dust” in the area, but that it did not affect visibility. Turner could remember “sailing through the air and hitting the pavement and rolling” but could not remember being thrown up on the hood of the car. It is uncon-tradicted Turner received serious bodily injuries.

We shall first consider Turner’s law point of “no evidence”, and view the evidence most favorably to the defendant. The defendant’s testimony sheds very little light on the question of proper lookout as he did not see Turner at all until after the impact. Neither does Rogers’ testimony touch directly on Turner’s lookout. He passed through the area ahead of Clark and saw Turner standing along the highway’s edge with the red flag in his hand. Turner made no attempt to stop Rogers as the scraper was apparently clear of the highway when he drove through. By Turner’s own testimony he took his eyes off of the Clark car momentarily when he glanced over his shoulder to observe the scraper and determine its position relative to the'highway. Of course, this movement was necessary in order to perform his duties as a flagman and to protect both the travelling public and the construction equipment, but it does in our opinion present more than a scintilla of evidence that Turner did not keep a proper lookout. Negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273. In applying the test laid down in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, we are of the opinion there was at least some evidence ruling on the lookout issue as it pertained Turner did not keep a proper lookout. The trial court would have been in error in to Turner as a matter of law.

In determining the fact question of the sufficiency of the evidence we must review all the evidence. In so doing, we hold the jury findings that Turner did not keep a proper lookout and such failure was a proximate cause is so against the great weight and preponderance of the evidence as to be manifestly wrong. Tudor v. Tudor, 158 Tex. 559, 314 S.W.2d 793. Turner was in a proper position to carry out his duties as a flagman. He had a red flag in his hand and was facing oncoming traffic. The jury found his failure to step over to the side of the road when he saw Clark approaching was not negligence. He saw Clark approaching at “an ordinary speed, normal speed rather, and I observed him coming along”. After Turner “glanced around” to see if the scrapers had crossed the road, Clark “was about 10 or 12 feet in front of me”. It was then that he testified “I guess I just froze”. He had no reason to believe Clark would not stop. Other drivers had stopped in obedience to the same flagging movements. Clark estimated his speed immediately prior to the collision to have been approximately 5 m. p. h. At this slow speed he would have travelled 7.3 feet per second, thus Turner would have had less than two seconds from the time he glanced back to take evasive action to try to avoid being struck. Courts have held time and distance are important factors to consider in passing on the question of setting aside lookout findings. Bigger s v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359. Mesa Trucking Co. v. King (Tex.Civ.App.) 376 S.W.2d 863 (Ref. N.R.E.). The jury properly exonerated Turner for his failure to remove himself from the path of the Clark car.

It has also been held that the failure to keep a proper lookout can be deemed a proximate cause only where “the keeping of it would have prevented the unfortunate occurrence”. Texas & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049. Taylor v. Brooks (Tex.Civ.App.) 392 S.W.2d 878 (Ref. N.R.E.). The trial court defined “proximate cause” in substance, and without objection, as a cause in a natural and continuous sequence, which produces an event and without which the event would not have occurred; and in order to be a proximate cause, it must have been reasonably foreseen that such event, or some similar event, was likely to have resulted from such cause. The definition properly invokes causation and foreseeability. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560. Under the facts and circumstances shown here we find insufficient evidence to show Turner’s lookout was the cause of the accident or to support the foreseeability which are prerequisites to proximate cause.

Turner saw the Clark car approaching at a normal speed; he was signalling with his flag and arm for Clark to stop; he assumed Clark would stop when he discovered Clark was still moving toward him from 10 to 12 feet away. At this time Turner then “froze”. The jury’s finding that he was not negligent in failing to step over to the side of the road is not challenged. In fact the evidence supports the conclusion he did not have sufficient time to take such evasive action. When all of the evidence is presented,' both that supporting the jury finding and that contrary thereto, we think the jury findings are against the great weight and preponderance of the evidence.

Appellee brings forward a counter point to the effect any error of the jury findings would become immaterial and harmless since the plaintiff could pot recover by reason of the doctrine of “volenti”. It is the defendant’s contention “volenti” applies for the reason Turner admitted he was working in a dangerous place and that in spite of such knowledge he accepted the employment. This contention cannot be sustained. “Volenti” is an affirmative defense and the burden of pleading and proof is upon the defendant. The requirements of such a defense are (1) The plaintiff has knowledge of facts constituting a dangerous condition or activity, (2) He knows the condition or activity is dangerous, (3) He appreciates the nature or extent of the danger, (4) He voluntarily exposes himself to this danger. J. & W. Corporation v. Ball (Sup.Ct.) 414 S.W.2d 143 (Opinion dated January 11, 1967). These issues were not requested and were not submitted. The appellee thereby waived this defense. Rule 279, Texas Rules of Civil Procedure.

Even in the event these elements of “volenti” or assumption of risk had been properly submitted and jury findings obtained, this defense is not applicable to the facts and circumstances of this case. In automobile collision cases involving negligence of third parties, the doctrine of assumed risk is not available. Brock v. Worth Construction Company (Tex.Civ.App.) 344 S.W.2d 752 (Ref. N.R.E.). American Cooperage Company v. Clemons, 364 S.W.2d 705 (Ref. N.R.E.) Regardless of the hazardous conditions under which Turner worked, Clark still owed a duty not to harm him. This is clearly a case that was correctly tried on the basis of negligence and contributory negligence.

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


author: GREEN, Chief Justice.

text:
    WALTER E. HELLER & COMPANY, Inc., Appellant, v. W. M. ALLEN and M. H. Allen, Jr., Appellees.
    No. 221.
    Court of Civil Appeals of Texas. Corpus Christi.
    Feb. 9,1967.
    Rehearing Denied March 9, 1967.

      Fischer, Wood, Burney & Nesbitt, Frank W. Nesbitt, Corpus Christi, for appellant.
    Boone, Davis, Cox & Hale, G. Cole Thomson, Corpus Christi, for appellees.
   OPINION

GREEN, Chief Justice.

Appeal is from a take-nothing judgment for defendant-appellees rendered after the court sustained their motion for an instructed jury verdict.

This lawsuit involves a lease-purchase contract dated September 19, 1960, between National Leasing Company, an Illinois corporation, as lessor-owner, and Marine Services of Corpus Christi, Inc., as lessee, covering a tug boat, and an agreement whereby appellees agreed to guarantee performance of the lease-purchase contract with certain limitations on their individual financial responsibility.

In the late Summer or early Fall of 1960, Marine Services of Corpus Christi, Inc., was incorporated under the laws of Texas for the purpose of furnishing towing and ship fueling services in the Corpus Christi area. Appellees M. H. Allen, Jr. and W. A. Allen and attorney Keith Merrick were the sole stockholders and officials of said company, with M. H. Allen, Jr., being the majority stockholder and president, and actual manager of its affairs. For the purpose of acquiring a tug boat necessary in the business of the company, M. H. Allen, Jr., went to New Orleans in September, 1960, and located the tug M/V Ray which was for sale. He made an agreement with the owner West Bank Towing Company for the purchase by Marine Services of the boat for $65,000.00, paying down $7,500.00, with the remainder to be paid in thirty days.

Allen, in order to finance the deal, entered into negotiations with a lease broker that resulted in the purchase by National Leasing Company of the M/V Ray from its owners for the sum of $65,000.00, which included credit for the $7,500.00 cash payment. Thereupon, National Leasing Company, as owner and lessor of the tug, and Marine Services of Corpus Christi, Inc., as lessee, signed and entered into the lease purchase contract, hereafter called the lease.

National Leasing was not satisfied that Marine Services of Corpus Christi, Inc. had a sufficiently sound financial structure, and before it would enter into this agreement it required that the two Allens sign a personal guarantee of performance by their company, and that W. A. Allen agree not to dispose of certain of his assets during the term of the lease agreement. Accordingly, appellees did sign and deliver to National Leasing the instrument upon which appellant relies in this suit to fix appellees’ liability, and which reads as follows:

“We, M. H. Allen, Jr. and W. M. Allen, do hereby, in consideration of the foregoing charter party, individually, jointly, and in solido, guarantee performance of the foregoing charter party by MARINE SERVICES OF CORPUS CHRISTI, INC., except however, financial liability incurred under this guarantee is not to exceed the difference, if any, between face value of the charter party, less total paid and less amount recovered from disposal or salvage of assets covered by this agreement, and less amount recovered from any other source.
/s/ M. H. Allen, Jr.
M. H. Allen, Jr.
/s/ W. M. Allen
W. M. Allen ”

The term “charter party” was shown to be synonymous with and mean the same as the lease contract.

W. M. Allen also signed and delivered to National Leasing a letter promising not to dispose of his assets during the five-year term of the lease.

The lease between National Leasing and Marine Services was executed September 19, 1960. It provided that the term of the lease of the tug began on said date, and unless sooner terminated would expire sixty months later. Monthly rental charges of $1,489.80 each were to be paid in advance to lessor by lessee, with the provision that either party had the right to cancel the agreement on the anniversary date by giving the other party at least thirty days written notice, and in the event of cancellation, lessee agreed to purchase the tug boat at the original value of $65,000.00, less a cancellation credit of 10% at the end of the first year, 30% at the end of the second year, 50% at the end of the third year, 70% the fourth year, or 90% the fifth year. Thus, if the lessee paid his twelve monthly installments of $1,489.80, and the lease was cancelled by either party on the first anniversary date, i. e., at the end of one year, lessee contracted to buy the tug, receiving 10% credit on the purchase price of $65,-000.00 so that the sum to be paid in addition to the twelve monthly rental payments of $1,489.80 each would be $58,500.00, less the $7,500.00 down payment designated in the lease as a deposit as security for prompt and full payment of rent and faithful and timely performance of the lease. If the lessee continued to pay monthly rental for sixty months, which payments would have totalled $89,388.00, it would be entitled to a credit of 90% on the original purchase price of $65,000.00 toward the purchase of the tug.

The lease further provided that it was understood between the parties that lessor contemplated assigning the lease and all its rights thereunder. By written instrument dated September 27, 1960, lessor National Leasing assigned without recourse the lease agreement and written guarantee and all its rights thereunder to Walter E. Heller & Company, Inc., the plaintiff in the trial court and appellant here. Lessee Marine Services paid only two monthly rentals, one to National Leasing before the assignment, and one on November 17, 1960, to appellant. No further payments have been made. In January or February, 1961, when lessee was unable to meet its payments, appellant by telephone contacted appellee M. H. Allen, Jr., president of lessee company with reference to selling the M/V Ray and applying the proceeds to the balance due under the terms of the lease agreement. Allen advised appellant that his company was no longer able to keep up with the payments, or otherwise acquire the tug, and agreed that the tug should be sold and the proceeds applied to the amounts due under the charter party (lease contract) in an effort to reduce the amount of losses as much as possible. Thereafter, on February 24, 1961, the M/V Ray was sold by appellant for $50,000.00 which sum, and also the amount of , the two rental payments and $7,500.00 deposit were credited to lessee’s account.

It was appellant’s contention in the trial court, and is also on appeal, that when lessee defaulted on its rent payments, appellant was entitled to declare the entire amount of rent provided for under the lease agreement, i. e., sixty monthly rentals of $1,489.80 each, being a total sum of $89,-388.00, less the rentals paid by lessee, to be due and payable. It sought judgment for $28,958.40 unpaid rentals, being the total sum just mentioned less the two monthly rentals paid, the $7,500.00 deposit, and the $50,000.00 received from the sale of the boat, and also interest and attorney fees. Appellant contends that appellees had guaranteed performance of the lease contract by lessee, and hence were individually liable for such unpaid rents, interest and attorney fees.

In the trial court, appellees assigned as reasons for granting their motion for an instructed verdict three grounds as follows: (1) .That the term “face value of the charter party” purporting to limit the liability of the defendants on their written guarantee renders said instrument so ambiguous and uncertain of meaning that as a matter of law it is not a binding agreement of any kind as to the defendants; (2) that the sale of the tug boat on February 27, 1961, terminated the lease agreement as a matter of law, and plaintiff is not entitled to recover the unearned rentals sued for; (3) that the lease agreement provides for the enforcement of a penalty, and that as a matter of law plaintiff is not entitled to enforce said penalty against these defendants. It is upon these grounds, and each of them, with some variations that appellees rely to uphold the judgment.

The decree of the trial court does not specify the reason or reasons upon which the instructed verdict was granted other than that the court sustained appel-lees’ motion. We are mindful of the rule that the question presented on appeal is whether the prevailing party was entitled to judgment as a matter of law, and not whether he was entitled to judgment on the specific grounds alleged. If there are no material fact issues raised by the evidence to be submitted to the jury, the court is authorized to instruct a verdict on its own volition regardless of the sufficiency or not of a motion. In re Price’s Estate, Tex. Sup.Ct., 375 S.W.2d 900, 904; Harvey v. Elder, Tex.Civ.App., 191 S.W.2d 686, writ ref.; Rockett v. Texas State Board of Medical Examiners, Tex.Civ.App., 287 S.W.2d 190, writ ref., n. r. e.; Anderson Furniture Co. v. Roden, Tex.Civ.App., 255 S.W.2d 345, writ ref., n. r. e.

We shall also be guided by the rule that on an appeal from a judgment based on an instructed verdict, the evidence supporting the appellant’s position must be accepted as true, and all conflicts and inconsistencies must be resolved in appellant’s favor. Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859, 865; Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60.

The first ground in support of the court’s judgment as here presented is that the term “face value of the charter party” causes the guaranty contract to be ambiguous so that without further pleading and proof by appellant its meaning is so uncertain that it does not constitute a valid agreement binding on appellees.

It is the theory of appellant that the guaranty agreement is not rendered ambiguous by the use of the term “face value” in the second clause thereof; that said term as used has a definite, certain meaning, and that it can refer to nothing other than the value to lessor of performance by lessee of the lease contract, which value is the payment of the monthly rentals of $i,489.80 for the full term of the lease, being sixty months, or a “face value” of $89,388.00; that the parol evidence rule would prohibit admission of evidence of the meaning of “face value” as contained in the instrument. Appellant further argues that if it should be held that said clause is ambiguous, there was no obligation on appellant, as plaintiff below, to plead and prove the existence of an ambiguity in the terms of the “proviso” contained in the second clause of the guaranty, or to plead or prove that such ambiguity, if any had any certain meaning; that the burden in this respect was on appellees of proving an enforceable proviso as well as the facts bringing the case within the terms thereof, they being the parties relying on the exception as a defense. Finally, in this respect, appellant contends that if it had any burden of pleading and proving the construction to be placed on the agreement, it complied with this burden by making the guaranty agreement and the lease contract exhibits to its petition and placing them in evidence, and alleging appellees’ liability for the total amount of rents for the sixty months of the lease period less the credits given as heretofore stated.

Appellees’ contentions on this phase of the case are outlined in their brief as follows: (1) That a contract is ambiguous if it is of uncertain meaning or is reasonably susceptible to two or more meanings; (2) that the “guaranty contract” can be reasonably read so as to hold the appellees’ liable for any one of a number of sums of money depending upon the meaning given the term “face value”; (3) that there are several ways that the term “face value” can be understood, as that term is used in the guaranty contract, due to its inappropriateness in relation to the lease purchase contract, and each of the understandings is reasonably supported by the words of the instruments involved; (4) that the guaranty contract is thus rendered ambiguous and uncertain since it does not give a fixed sum for which the appellees are liable and unless definite meaning is given it by further pleading and proof, the appellant should not be allowed to recover under it; (5) that the appellant refused to plead or prove up the meaning of the guaranty contract and the trial court had no alternative except to grant appellees’ judgment at the end of appellant’s evidence.

Appellees in the trial court in their answer to appellant’s petition duly plead’the limitation on their liability under the guaranty agreement, and ambiguity of the term “face value” as used in such agreement.

It is clear that the lease and the guaranty agreement, having been executed as a part and parcel of the same transaction, must be construed together. Camp v. Dallas Nat. Bank, Tex.Civ.App., 21 S.W.2d 104, 108, affirmed on this point in Camp v. Dallas Nat. Bank, Tex.Com.App., 36 S.W.2d 994.

The guaranty agreement executed by ap-pellees contains two clauses, each of which embodies a distinct undertaking. The first clause to the word “except” would, if it stood alone, be an unconditional guarantee of performance of the lease contract by lessee Marine Services of Corpus Christi, Inc., and would have obligated appellees to respond in damages to the same extent that Marine Services would be so obligated in case of breach by the latter of the terms of its lease contract. But it appears clear that the parties intended that there should be a limit to the financial responsibility of the Allens, so the second clause was added which provided that their financial liability would not exceed the difference, if any, between face value of the charter party, less total paid and less amount recovered from disposal or salvage of assets covered by this agreement, and less amount recovered from any other source.

The controversy here arises over the interpretation to be placed on the term “face value of the charter party.” All authorities to which we have been cited concerning the meaning of face value have reference to bills, notes, bonds, insurance policies, or other documents which on their face purport to carry obligations of a stated monetary amount. Supreme Council, American Legion of Honor v. Storey, Tex.Civ.App., 75 S.W. 901, 905, modified in other respects 97 Tex. 264, 78 S.W. 1; Bank of Miami v. Young, Tex.Com.App., 208 S.W. 656; Thompson v. North Texas Nat. Bank, Tex.Com.App., 37 S.W.2d 735, 738; Great Southern Life Ins. Co. v. Cunningham, 128 Tex. 196, 97 S.W.2d 692. In Tinder v. United States, 2d Cir., 193 F.2d 720, reversed on other grounds, 345 U.S. 565, 73 S.Ct. 911, 97 L.Ed. 1250, the court in construing a statute on theft of mail providing the punishment where the value or face value of any article stolen does not exceed $100.00, said:

“The word 'value’ obviously refers to market, actual or computable value of a tangible thing, and the words ‘face value’ were doubtless inserted to comprehend securities such as promissory notes, bonds or other documents which on their face purport to carry obligations of a stated monetary amount.”

See also Wilson v. Justice’s Court of San Diego, TP., 22 Cal.App.2d 278, 70 P.2d 695; American Nat. Bank of Portsmouth v. Ames, 169 Va. 711, 194 S.E. 784, 789.

We have found no case where the term “face value” was applied to a lease contract such as the one in this cause.

Appellant contends that since the agreement of appellees was to guarantee performance of the lease contract by lessee, such performance was of necessity payment of the monthly rentals for the maximum period of sixty months, and that the face value of the lease was the value of such performance. That is one construction which could be given. However, we do not believe that it is the only reasonable interpretation to be placed on the term. According to the provisions of the lease, either party, lessor or lessee, had the right to cancel the agreement on any anniversary date, i. e., either one year, two years, three years, four years, or five years from September 19, 1960, in which event lessee was required to purchase the tug at the original value of $65,000.00 less cancellation credit as heretofore stated. Hence the value of performance was uncertain and indefinite, and could be either of several amounts, and the total amount for which appellees would be liable under the guaranty contract would also be indefinite and uncertain and subject to two or more interpretations, so that the guaranty contract made the basis of appel-lees’ liability is to such extent ambiguous.

Where the meaning of a contract is uncertain and doubtful, or where the agreement is subject to more than one reasonable meaning unresolvable by rules of construction, the contract is rendered ambiguous, and parol evidence is admissible to show the true intention of the parties, and to explain such ambiguity. Skelly Oil Company v. Archer, 163 Tex. 336, 356 S.W.2d 774; Neece v. A.A.A. Realty Co., 159 Tex. 403, 322 S.W.2d 597; Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154.

It is appellees’ additional contention that the lease-purchase contract, with its relative short term and the allegedly high rentals, its cancellation privilege and requirement of purchase by lessee on cancellation on the terms heretofore stated, and its other provisions, was under the proven facts treated by the parties as a debt financing and security arrangement, and that the parties considered the amount being financed, to-wit the purchase price of $65,000.00 as the face value of the lease contract. This is the only lump sum mentioned in the lease, and the various cancellation purchase prices are based on this sum and it is clear from a study of the entire agreement and the facts leading to its execution that it was a method of financing the purchase of a $65,000.00 tug.

We do not find as a matter of law that the term “face value of the charter party” could mean only $65,000.00, or any of the sums for which lessee could have purchased the tug on the various anniversary dates of the signing of the lease, and thus have performed its contract, nor do we find that such term could not have been intended to mean $89,388.00 as contended by appellant. We do hold that under the circumstances it is an uncertain term that could have reasonably been understood by the parties to have meant any of the figures, and that its use caused the guaranty contract to be ambiguous in the sense discussed in the Skelly Oil Company and Neece cases, supra.

The burden was on appellant as plaintiff to prove its case. It could prove it in two ways: by securing a holding that the guaranty contract was unambiguous and could be given only the construction for which it contends, or, if the contract were ambiguous, by introducing evidence that the parties intended it to have the construction which appellant gave it. Skelly Oil Company v. Archer, supra, syl. (4) at page 778 of 356 S.W.2d; Neece v. A.A.A. Realty Co., Tex.Sup.Ct., supra. We have found the guaranty agreement to be ambiguous because of the indefinite, uncertain meaning to be given the term “face value of the charter party”. Unlike the plaintiffs in Skelly, appellant here offered no evidence in the trial court bearing on the intention of the parties. Its position at all stages of the trial was that the agreement was not ambiguous, and that it could have only the one meaning ascribed to it by appellant. By supplemental petition and by motion in limine appellant stood firm on the position that the guaranty contract was complete within itself, and that it had a definite meaning as a matter of law, and that parol evidence was not admissible to explain the instrument. It is a well established rule of law that the parties are restricted in the appellate court to the theory on which the case was tried in the lower court. Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, on rehearing, page 245.

Appellant contends that appellees had the burden of pleading and proving the existence of a definite and certain proviso in the guaranty contract which would somehow limit their financial liability as created in the first clause, and to prove the facts bringing the case within the terms of such proviso; and that appellant-plaintiff had no burden of pleading or proving any part of the proviso or of any facts bringing the case within its terms. We do not agree with appellant on this proposition. Appel-lees did meet the burden of pleading the ambiguity of the proviso. Under our Texas authorities, the burden of proving its cause of action, and the extent of appellees’ liability under the guaranty was on appellant. Sherman v. Provident American Insurance Co., Tex.Sup.Ct., decided Oct. 5, 1966, 10 Sup.Ct.Jour. 26; Hardware Dealers Mutual Insurance Co. v. Berglund, Tex.Sup.Ct., 393 S.W.2d 309; Paulson v. Fire Insurance Exchange, Tex.Sup.Ct., 393 S.W.2d 316; Shaver v. National Title & Abstract Co., Tex.Sup.Ct., 361 S.W.2d 867, 98 A.L.R.2d 531; Skelly Oil Company v. Archer, Tex. Sup.Ct., supra; Neece v. A.A.A. Realty Co., Tex.Sup.Ct., supra; Mergenthaler Linotype Co. v. Herrmann, Tex.Civ.App., 217 S.W.2d 122, writ ref., n. r. e.; Totten v. Houghton, Tex.Civ.App., 2 S.W.2d 530.

For the reasons heretofore stated, appellant failed to meet its burden of pleading and proving its cause of action against appellees on the guaranty contract, and the court did not err in rendering judgment for appellees.

The conclusions reached above require an affirmance of the judgment. We shall nonetheless consider the remaining points contained in the briefs of the parties.

Paragraph 17 of the lease contract sets forth the rights of lessor in the event of default by lessee as follows:

“17. Default. If Lessee with regard to any item or items of equipment fails to pay any rent or other amount herein provided after the same is due and payable, or if Lessee with regard to any item or items of equipment fails to observe, keep or perform any other provisions of this lease required to be observed, kept or performed by Lessee, Lessor shall have the right to exercise any one or more of the following remedies:
“(a) To declare the entire amount of rent hereunder immediately due and payable as to any and all items of equipment, without notice or demand to Lessee.
“(b) To sue for and recover all rents, and other payments, then accrued or thereafter accruing, with respect to any and all items of equipment.
“(c) To take possession of any and all items of equipment, without demand or notice, wherever same may be located, without any court order or any process of law. Lessee hereby waives any and all damages occasioned by such taking of possession. And said taking of possession shall not constitute a termination of this lease as to any and all items of equipment unless Lessor expressly so notifies Lessee in writing.
“(d) To terminate this lease as to any and all items of equipment.
“(e) To pursue any other remedy of law or in equity.
“Not withstanding any repossession, or any other action which Lessor may take, Lessee shall be and remain liable for the full performance of all obligations on the part of Lessee to be performed under this lease. All such remedies are cumulative and may be exercised concurrently or separately.”

For reasons fully discussed by Chief Justice Hickman in Stewart v. Basey, Tex.Sup.Ct., 150 Tex. 666, 245 S.W.2d 484, and which in the interests of brevity need not be repeated, the provisions for stipulated damages arising from the authority purported to be given lessor in (a) and (b) above in the event of any breach of the provisions of the lease should be treated as a penalty, unenforcible as to lessee and to appellees as guarantors; and appellant should be relegated to its actual damages under proper pleadings and proof. See also Christie, Mitchell and Mitchell Co. v. Selz, Tex.Civ.App., 313 S.W.2d 352, writ dism.; Abramson v. Rashti, Tex.Civ.App., 373 S.W.2d 699, writ ref., n. r. e.

Appellant in the instant case did not sue for its damages resulting from lessee’s anticipatory breach of the contract, as the appellant had sued alternatively in Stewart v. Basey, opinion of Court of Civil Appeals, 241 S.W.2d 353. If it had, the proper measure of damages where there was no reletting of the leased property would have been the difference between the present value of the rentals contracted for in the lease and the reasonable cash market value of the lease for its unexpired term. White v. Watkins, Tex.Civ.App., 385 S.W.2d 267; John Church Co. v. Martinez, Tex.Civ.App., 204 S.W. 486, 489, writ ref.; San Antonio Brewing Ass’n v. Brents, 39 Tex.Civ.App. 443, 88 S.W. 368, writ ref.; Davidson v. Hirsh, 45 Tex.Civ.App. 631, 101 S.W. 269, n. w. h.; Massie v. State Nat. Bank, 11 Tex.Civ.App. 280, 32 S.W. 797; 32 Am.Jur., Landlord and Tenant, Sec. 161, p. 157. See Employment Advisors, Inc. v. Sparks, Tex.Sup.Ct., 368 S.W.2d 199; Amco Trust, Inc. v. Naylor, Tex.Civ.App., 311 S.W.2d 257, rev. on other grounds Tex.Sup.Ct, 317 S.W.2d 47, 73 A.L.R.2d 1109.

Hence, appellant was not entitled to recover for future rentals as such, which is what it sued for. It was not entitled to judgment for delinquent rents, for the court was justified under the facts in off-setting rents past due at the time of the agreed sale of the tug with the $7,500.00 deposit which served as security for the prompt and full payment of rent and faithful and timely performance of the lease.

Failure to pay rent was the only act of non-performance with which lessee was charged; and hence when the lessee was deprived of the use of the tug and the lease was terminated and no claim was made by appellant in the trial of this suit for damages for anticipatory breach, the security could serve only as a deposit to be applied to rent delinquent at the time of such termination.

Appellees contend that the undisputed facts surrounding the sale of the tug by appellants with the agreement of lessee for the purpose of reducing the losses constituted a surrender by lessee and acceptance thereof by appellant which abrogated or terminated all of lessee’s and ap-pellees’ obligations toward appellant. To constitute such a surrender, there must be a mutual understanding to such effect between the parties either expressed or implied from their words and actions, and its existence is usually a fact issue. 36 Tex. Jur.2d § 260, pp. 113-114; Patteson v. McGee, Tex.Civ.App., 350 S.W.2d 241; Nutt v. Berry, Tex.Civ.App., 323 S.W.2d 500; Barret v. Heartfield, Tex.Civ.App., 140 S.W.2d 942, writ ref. Where the circumstances and acts of the parties are equivalent to an agreement on the part of the tenant to abandon the leased premises and of the landlord to resume possession a surrender results as a matter of law. Dearborn Stove Co. v. Caples, 149 Tex. 563, 236 S.W.2d 486; Barret v. Heartfield, supra; Nutt v. Berry, supra; William H. Beard Dredging Co. v. Hughes, 2d Cir., 121 F. 808; Cutler Gate Building Corp. v. United States Leasing Corp., Dist. Ct. of Appeals, Florida, 165 So.2d 207. However, it is not necessary that we determine whether there was a surrender and acceptance as a matter of law, or whether a fact issue was raised by the evidence, since as has been stated above, appellant was not entitled to recover future rentals as such accruing after the disposition of the tug, and there was neither pleading nor proof of actual damages incurred by appellant.

So far, we have considered the penalty, surrender and damage features as they affect the rights of appellant and lessee Marine Services of Corpus Christi, Inc. The suit against appellees is based on the guaranty contract executed by them, heretofore copied in this opinion.

The liability of a guarantor is in general measured by that of the principal, and will be so construed unless a less or greater liability is expressly assumed by a guarantor. Where under the conditions of the contract no liability has arisen on the part of the principal, there is no liability on the part of the guarantor. 38 C.J. S. Guaranty § 43, p. 1192; Cullum v. Commercial Credit Co., Tex.Civ.App., 134 S.W.2d 822. The contract will be strictly construed to impose only those burdens clearly within its terms. 38 C.J.S Guaranty § 50, p. 1203.

As we construe the guaranty contract, the guarantors (appellees) did not expressly assume a liability greater than that of lessee Marine Services of Corpus Christi, Inc. under the lease contract. By the first clause, they guaranteed performance by lessee, but their financial responsibility was limited in the second clause so as not to exceed the difference, if any, between face value of the lease contract less total paid and less amount recovered from disposal or salvage of the assets covered by the agreement, and less amount recovered from any other source. Omitting the second clause, their liability was co-extensive with that of lessee. Assuming that the term “face value” is not ambiguous, the second clause does not increase appellees’ liability, but is clearly intended to put a limitation or ceiling thereon. Lessee was not a party to the guaranty contract, and its position is not affected by reason of the guaranty having been executed by appellees. There is nothing contained in said guaranty contract which would cause the guarantors to be liable for a greator amount than lessee, or to be liable where lessee is not.

The trial court did not err in sustaining appellees’ motion for an instructed verdict, and rendering a take-nothing judgment.

Affirmed.

      . The tug boat, having been sold, the lease was terminated and had no reasonable cash market value; therefore the measure would have been the present value of the unaecrued rents, less credits to which lessee, and appellees, should be entitled, provided lessee and appellees were not relieved of liability by reason of a surrender of the tug by lessee and acceptance by lessor as a matter of law. There was no evidence in the record of any such value.


author: DIXON, Chief Justice.

text:
    SULPHUR SPRINGS COCA-COLA BOTTLING COMPANY, Appellant, v. Francis FORTNEY, Appellee.
    No. 16887.
    Court of Civil Appeals of Texas. Dallas.
    March 3, 1967.

      Allen Clark, of Clark & Clark, Green-ville, for appellant.
    Don M. Hayter, Greenville, for appellee.
   DIXON, Chief Justice.

Sulphur Springs Coca-Cola Bottling Company, appellant, whose place of business is located in Hopkins County, Texas, was sued for damages in Hunt County by appellee Francis Fortney. This appeal is from an order of the County Court of Hunt County overruling appellant’s plea of privilege whereby appellant sought to have the cause transferred to Hopkins County for trial.

Fortney operates a washateria, a service center, and a service station in Commerce, Hunt County, Texas. He owns and operates a soft drink vending machine in his service center. He purchases bottled coca-cola by the case from appellant. The coca-cola is bottled by appellant at its place of business in Sulphur Springs, Hopkins County, and delivered by truck to appellee Fortney at his service center in Commerce. From time to time Fortney takes a few bottles home for the personal use of himself and his family.

On or about December 7, 1965 appellee became ill at his home after drinking part of the contents of a bottle of coca-cola. The coca-cola tasted bitter and had a bad odor. Appellee received medical attention and missed work about ten days.

In his petition appellee Fortney charges that his illness and damages came about through appellant’s negligence “in failing to properly clean and sterilize the bottles used by it in the bottling of said drinks prior to their use and resale to the public, as well as properly charging them with the proper contents.” Appellee further alleges that all of the instruments and machinery used by defendant in the bottling of said drink were under appellant’s exclusive supervision and control. The controverting affidavit contains substantially the same allegations.

Appellee contends that venue may be maintained in Hunt County under Art. 1995, subdivision 9a, Vernon’s Ann.Civ.St.

In its third point on appeal appellant says that subdivision 9a is not applicable because appellee did not prove that any negligence occurred in Hunt County; and that to the contrary, if there was any negligence, it was shown to have occurred in Hopkins County, where the coca-cola was bottled.

Subdivision 9a of Art. 1995 provides that a suit based on negligence “may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile.” (Emphasis ours.)

Our Supreme Court has said that the language of subdivision 9a is plain and unambiguous. For venue purposes it means that a suit may be tried in the county where the negligent act occurred as against the claim that the suit may be tried in the county where the injuries occurred. Leonard v. Abbott, 366 S.W.2d 925, Tex.Sup., 1963.

In the case now before us appellee himself alleges that the negligent acts of appellant in the bottling of the coca-cola occurred in Hopkins County and that the instruments and machinery for said bottling were under appellant’s exclusive control in Hopkins County. That being so venue properly lies in Hopkins County. Appellant’s third point is sustained.

In two other points appellant attacks the sufficiency of appellee’s controverting affidavit. In view of our sustaining appellant’s third point we see no need to pass on the question of alleged technical defects in appellee’s affidavit.

The judgment of the trial court is reversed and the cause remanded to the trial court with directions to sustain appellant’s plea of privilege and transfer the cause to Hopkins County for trial.

Reversed and remanded.


author: CHAPMAN, Justice.

text:
    AMERICAN BANKERS INSURANCE COMPANY, Appellant, v. Ada FISH, Appellee.
    No. 7684.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 20, 1967.

      Stovall & Stovall, Plainview, for appellant.
    J. Farris Fish and Howard Traweek, Matador, John B. Stapleton, Floydada, for appellee.
   CHAPMAN, Justice.

This suit was filed by appellee, Mrs. Ada Fish, seeking recovery for benefits under a “Hospital and Surgical Expense” insurance policy based on expenses incident to confinement in St. Joseph’s Hospital in Hot Springs, Arkansas, from July 28, 1964, to August 23, 1964. In a trial to the court judgment was rendered for appellee for $461.15 found by the court to be due under the terms of. the policy, and for penalty of twelve per cent and attorneys’ fees in the amount of $350. Appeal is perfected upon five points of alleged error.

Suit was filed in the County Court of Motley County on March 10, 1966, against American Bankers Insurance Company, successors to the company which issued the policy, First National Life Insurance Company. Answer was filed for the company by a Waco law firm on March 18, 1966. On April 26, 1966, at the direction of Judge Reeves, County Judge of Motley County, Mr. Fish, one of the attorneys for appellee, mailed the then attorneys of record a letter with a copy to Judge Reeves informing them the trial judge had asked him to advise them the styled and numbered case was set in his court on Wednesday, May 11, 1966. No acknowledgement of receipt of the letter is shown in the record but on April 29, 1966, the Waco firm by letter to Mr. Richard F. Stovall of Plainview informed him they had advised Mr. Fish that Mr. Stovall’s firm was handling the case on behalf of appellant and requested that he “ * * * get together with Mr. Fish concerning the trial setting.” That letter shows the Waco firm knew from Mr. Fish’s letter that the case was set for trial. The record shows no effort by the Waco firm or Mr. Stovall’s firm to contact the court or Mr. Fish concerning a change in the date of trial setting nor was any application or request made for a jury or a jury fee paid until approximately 10:00 o’clock a. m. on the morning the case was set for trial, Wednesday, May 11, 1966. No other case having been set for that day, there was no jury called.

Appellant filed its motion for continuance when the court refused to set the case at a later date and its first two points assert the trial court abused its discretion in refusing to grant appellant’s motion for continuance and depriving it of a trial by jury.

In the order overruling the motion for continuance the trial court recited that neither the motion, the evidence, nor the record on file shows diligence on the part of the company to be ready for trial; that no word was received by the company that it would not be ready for trial; that the judge was also ex officio County Superintendent of the county; that by the company’s silence it induced the court to arrange its docket, its school matters, and all other county and school administrative business in order that May 11 could be set aside for trial of the case.

In making its record for continuance appellant placed Judge Reeves on the stand. Although his testimony shows he did not have any cases set it showed he was director of Civil Defense of the county, requiring meetings in towns of the area constantly; that he was representative of the State Department of Welfare, “ * * * in which surplus commodities are constantly at demand on my time;” that he took care of the Community Chest activities in relation to indigent cases; that May was the month for school closings for the year, demanding many obligations on his time; and that he had no assurance that he would have a date for a future setting of the case within a reasonable time. He also testified that from general custom it was, his opinion an attorney receiving a notice of a setting would know it meant 10:00 o’clock on the morning of the date their cases are set.

We have been cited to no cases nor have we found any in our independent research where the exact fact situations present in the instant case have been passed upon by appellate courts. Under the general rule, the granting or refusing of a continuance is addressed to the sound discretion of the court, Erback v. Donald, 170 S.W.2d 289 (Tex.Civ.App.-Fort Worth, 1943, writ ref’d w. o. m.); Butcher v. Tinkle, 183 S.W.2d 227 (Tex.Civ.App.-Beaumont, 1944, writ ref’d w. o. m.), subject to review on appeal. Johnson v. Johnson, 296 S.W.2d 615 (Tex.Civ.App.-Waco, 1956, no writ). But a judgment will not be reversed on account of denial of application for continuance unless abuse of discretion is shown. Johnson v. Johnson, supra; Mitchell v. Mitchell, 233 S.W.2d 187 (Tex.Civ.App.-Amarillo, 1950, no writ); Motor Finance Co. of Texas v. Allen, 252 S.W.2d 1022 (Tex.Civ.App.-Beaumont, 1952, writ ref’d n. r. e.). Under the record before us we believe it would be improper for us to hold the trial court in this case abused its discretion.

The formal motion filed by appellant for continuance recites that counsel had insufficient time to prepare a defense and that it needs to take depositions and do other investigative work. Such affirmations are mere conclusions of the affiant. This court has held under such a situation the trial court did not abuse its discretion in denying a motion for continuance. Sanders v. Kansas City Life Ins. Co., 152 S.W.2d 506 (Tex.Civ.App.-Amarillo, 1941, writ ref’d); Panhandle Broadcasting Company v. Cercy, 363 S.W.2d 792 (Tex.Civ.App.-Amarillo, 1962, no writ).

The motion for continuance does not comply with Rule 252 so as to show what testimony is needed by the depositions the motion states it needs to take, its materiality, that diligence has been used to procure same or that such testimony was not available from some other source than depositions. Under the record before us we feel we are legally bound to hold the trial court did not abuse its discretion, even though under the circumstances shown this writer, had he been trial judge, would have granted the motion, reset the case and called a jury.

We also hold the trial court did not abuse its discretion in refusing a jury trial. Appellant wholly failed to comply with Rule 216. The answer to the petition of appellee was filed on March 18, almost two months before the trial. The Waco law firm could have made application for a jury and paid the $3.00 jury fee any time thereafter, and even the Plainview firm had from May 2nd to make the proper demand. Yet, neither firm did the court the courtesy of making a single effort to comply with the rule or request a change in setting. Under such circumstances we do not feel justified in holding the trial court abused its discretion. Continental Fire & Casualty Ins. Corp. v. Surber, 231 S.W.2d 750 (Tex.Civ.App.-Fort Worth, 1950, no writ); Nelson v. Dunigan Tool & Supply Co., 265 S.W.2d 680 (Tex.Civ.App.-Eastland, 1954, no writ).

The next three points assert reversible error in admitting testimony by Dr. Stanley, a practicing physician of Matador for many years, based upon the then current official directory of the American Medical Association giving the list of all medical doctors and medical hospitals in the United States for the reason it was hearsay; there was no proof of the expenses incident to confinement and treatment incurred within a hospital recognized as such by the American Hospital Association, the American Medical Association or the American Osteopathic Association; and there was no competent evidence that the expenses incurred by appellee were the usual, customary and regular charges of the hospital in question. We shall discuss the points concerning the question of the hospital being a recognized hospital first.

Appellant cites numerous cases for its contention that it was reversible error to permit Dr. Stanley to testify from the official directory of the American Medical Association that St. Joseph’s Hospital in Hot Springs, Arkansas, was listed therein as an approved medical hospital. A careful reading of the line of cases cited reveals they are generally instances where the courts have held that doctors may not on direct examination read from or testify to statements in medical books made by other doctors. The Supreme Court of Texas has indicated such testimony should be confined to cross-examination in showing the deficiency in the knowledge of the expert as to the science about which he is testifying, Gulf, C. & S. F. R. Co. v. Farmer, 102 Tex. 235, 115 S.W. 260 (1909), and that books of science are not admissible in evidence to establish the doctrines therein affirmed, except works of the exact sciences. St. Louis, A. & T. Ry. Co. v. Jones, 14 S.W. 309, 310 (Tex.1890). We do not believe those cases are authorities for the errors urged in the points under discussion.

Mrs. Fish testified the hospital was a large, three-story hospital with doctors and nurses treating sick people and that Dr. Washburn placed her in the institution. Plaintiff’s Exhibit 3 listing the services rendered clearly shows the hospital to be a church-related medical hospital. Mrs. Fish also testified that after she was “ * * * in the hospital for that period of time” they sent her a statement showing a room for two days at $18 a day and twenty-four days at $14 a day. The statement also included expenses for laboratory, X-rays and pharmacy and lists radiologists and pathologists, thus indicating it could only be a medical hospital.

Dr. Stanley, who had himself been operating a hospital for many years, testified the American Medical Association publishes an official directory each ten years listing all medical doctors and medical hospitals in the United States; that the current directory of the association was the one he was relying on and that St. Joseph’s Hospital in Hot Springs, Arkansas, showed by the directory to have been established in 1888; that it was a general hospital of 220 beds, 33 bathinettes, was church related, and that Sister Mary Leonardo Burham, a registered nurse, was its administrator.

Over objection of defendant Western Union Telegraph Company, a witness was permitted to testify from an authentic time-table recognized by railroad men as being a guide of schedules as to the time trains leave one town and arrive at another. One of our intermediate appellate courts held the evidence admissible, “ * * * for the same reason that market reports are admissible.” Western Union Telegraph Co. v. Gilliland, 61 Tex.Civ.App. 185,130 S.W. 212 (1910, writ ref’d).

Our courts have also held market reports or quotations contained in newspapers and trade journals are competent to show market prices. Texas & P. Ry. Co. v. Donovan, 86 Tex. 378, 25 S.W. 10 (1894); Houston Packing Company v. Spivey, 333 S.W.2d 423 (Tex.Civ.App.-1960, no writ) and cases therein cited ; City National Bank in Wichita Falls v. Kiel, 348 S.W.2d 260 (Tex.Civ.App.-Fort Worth, 1961, writ ref’d n. r. e.) and cases therein cited.

We perceive no material distinction in the admissibility of railway timetables, quotations in newspapers and trade journals, and information in professional directories. It is true Dr. Stanley testified on cross-examination that even though a hospital was approved in 1956 something could have happened since that date that would make it unapproved in 1963. We believe such testimony would only go to the weight of consideration to be given by the trial court in passing on the admissibility of the testimony when considered in connection with the information in the professional directory. The fact that it was listed in the official directory as a medical hospital, when considered in connection with Mrs. Fish’s testimony and the information shown on Exhibit P-3, would, in our opinion, bring it within the requirement of the insurance contract as recognized by the American Medical Association. We, therefore, hold appellant’s points three and four are not well taken.

The last point is a “no-evidence” point on the contention of no proof that the expenses incurred were the usual, customary and regular charges made by St. Joseph’s Hospital in Hot Springs, Arkansas. The policy of insurance provides:

“The Company will pay only the usual, customary and regular charges of the Hospital for the below schedule of services and materials, and the maximum amounts specified in this Part 1 are the maximum amounts for which the Company shall be liable as the result of any one accident or sickness, with respect to the Insured member hereunder.”

Dr. Stanley examined the itemized statement of the services rendered Mrs. Fish by the hospital and then testified they would be reasonable charges. However, the policy itself provides the maximum it will pay for services listed and lists the services.

If it could be said that Dr. Stanley’s testimony to* the effect that such charges were reasonable satisfies the requirement in the policy of “ * * * the usual, customary and regular charges,” the maximum for which judgment could have been rendered, considering the charges made and the limitations in the policy, would be as follows:

“Hospital room for 24 days at $14.00 per day.$336.00
“Hospital room for 2 days at $15.00 per day. 30.00
“Physical therapy (no limit in policy) . 40.10
“X-rays . 10.00
“Laboratory . 7.00
“Medicines . 7.50
$430.60”

This amount is for the reason that the two days for a room at $18 per day would have to be reduced to $15 per day, the maximum allowed under “Schedule A” of the policy. Though the hospital rendered a bill for $91.10 for medicine for Mrs. Fish and $25 for X-rays, the maximum allowed respectively for such items under “Part 1” of the policy is $7.50 and $10.00. No .payment obligations are shown in the policy for mineral baths.

We hold the testimony of Dr. Stanley to the effect that the charges made were reasonable charges and would be reasonable anywhere would satisfy the requirement of “usual, customary and regular charges” under the terms of the policy.

The Supreme Court of Texas has approved a holding by this court that: “The terms of an insurance policy must be interpreted in the light of common sense.” Hall v. Mutual Ben. Health & Accident Ass’n, 220 S.W.2d 934 (Tex.Civ.App.-Amarillo, 1949, writ ref’d).

Because the evidence does not support the amount of the judgment rendered, the case is reversed and remanded unless within ten days from the date of the announcement of this opinion, appellee files a remittitur in the amount of $30.55, plus the proportionate reduction of penalty on the judgment as reformed. If it does so within such time, the judgment of the trial court will be affirmed with the judgment reduced as required in this paragraph.