text:
    James H. BOWEN, Appellant, v. MERRITT, INCORPORATED, Appellee.
    No. 16848.
    Court of Civil Appeals of Texas. Fort Worth.
    June 30, 1967.
    Rehearing Denied July 21, 1967.

      Fulgham & Grogan, Weatherford, Herrick & Waltrip, and John W. Herrick, Fort Worth, for appellant.
    Harris & Ball, and Chester G. Ball, Arlington, for appellee.
   OPINION

LANGDON, Justice.

A collision occurred in Parker County, Texas, at about 4:10 P.M. on May 13, 1966, between an automobile driven by James H. Bowen, appellant, and a bobtail truck which was loaded with grain. The automobile was beaded East on U. S. Highway 80 and the truck owned by ap-pellee and driven by its employee, Roscoe Young, was headed north on F. M. Road 5 (the Aledo Road) and had proceeded onto the highway after having stopped for several minutes at a “yield right-of-way” sign. The collision resulted in personal injuries to appellant and damages to the automobile for which this suit was initiated. The case was tried to a jury. It found that the plaintiff (appellant) failed to timely apply his brakes (Issue 15); that such failure was a proximate cause (Issue 16) ; that he was driving at a greater rate of speed than a person of ordinary prudence (Issue 17) which was a proximate cause (Issue 18). Based upon these findings of contributory negligence, judgment was rendered for Merritt, Inc., the appellee.

Appellant, by eight points of error, contends that there is no evidence of probative force to sustain the findings of the jury in response to said four issues and that each of such findings is against the overwhelming weight and preponderance of the evidence.

We affirm.

The entire record in this case has been carefully reviewed by this court. In our opinion there is ample evidence to support the findings of the jury in response to the above issues as to contributory negligence and such findings are not against the overwhelming weight and preponderance of the evidence.

The evidence developed in this case, which is more or less undisputed, as to speed, distance between vehicles and their location at various times, skid marks, path and direction of the vehicles, condition of the roads and of the weather, dry, clear, daylight, force of the impact, damage to the vehicles and other related matters will support the verdict of the jury. The plaintiff admits that he saw the grain truck starting to move from a distance of 300 yards, the point at which it was first observable to him, and that he was going 65 miles per hour. The jury could readily conclude from the zig zag route of the car, the 86 feet of skid marks on the pavement and the shoulder of the highway, the impact with the truck, the distance it rammed under the truck and the damage to the car, that the plaintiff was driving at a greater rate of speed than a person of ordinary prudence under the circumstances, and that he did not meet the test of a person of ordinary prudence in timely applying his brakes and that each of such findings was a proximate cause of the collision.

Appellant attaches some significance to the jury findings that he did not fail to keep a proper lookout and that his failure to turn to the left was not negligence. Undoubtedly the jury believed that he kept a proper lookout because he saw the truck as soon as he topped a rise on the highway but that thereafter he did not conduct himself as an ordinary prudent person. Had he done so there would have been no necessity to turn left.

A recitation of the testimony pro and con is deemed unnecessary. Suffice it to say that some of these matters and others were disputed. These contested issues were resolved by the jury. A showing that there was evidence upon which the jury could or might have found otherwise is not sufficient to justify a reversal.

In Parr v. Herndon, 294 S.W.2d 162, 164 (Fort Worth Civ.App., 1956, Ref. n. r. e.), it was held: “It was for the jury to determine, under all the circumstances, whether the rate of speed at the particular time was excessive, and, if so, whether such speed was negligence and a proximate cause of the collision.” See also McClelland v. Mounger, 107 S.W.2d 901 (Amarillo Civ.App., 1937, Dism. Agr.); Seay v. Kana, 346 S.W.2d 384 (Houston Civ.App., 1961, no writ hist.) ; Permian Mud Service, Inc. v. Sipes, 339 S.W.2d 81, (Eastland Civ. App., 1960, no writ hist.); Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); Joe D. Hughes, Inc. v. Moran, 325 S.W.2d 829 (Fort Worth Civ.App., 1959, Ref. n. r. e.); and Intges v. Dunn, 311 S.W.2d 877 (Houston Civ.App., 1958, Ref. n. r. e.). The Intges case contains a discussion of the duties of a party approaching an intersection.

“ ‘No evidence’ points must, and may only, be sustained when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact.” 38 Tex.Law Review, pp. 361, 362.

Subdivisions (a) and (b), above, have no application to the record or the facts in this case. As to (c) we have viewed the evidence in its most favorable light in support of the findings of the jury upon which the judgment of the Court is based, considering only the evidence and the inferences which support the findings and rejecting the evidence and the inferences which are contrary to the findings. In the application of this test we have determined that all of the findings of the jury, upon which the Court based its judgment, are supported by ample evidence. Having reached this conclusion it follows that Subdivision (d) has no application.

“ ‘Insufficient evidence’ points may, and should, be sustained when the record discloses either of the following situations: (a) the evidence is factually insufficient to support a finding of a vital fact, or (b) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong.” 38 Tex. Law Review, pp. 361, 366, supra. Neither (a) nor (b) has any application to the facts revealed by this record.

Jurors are the exclusive judges of the controverted issues of fact raised by the evidence, of the weight to be given the evidence, and the inferences to be drawn therefrom. They are the exclusive judges of the credibility of the witnesses. “The law does not attempt to tell jurors what amount or kind of evidence ought to produce a belief in their minds. They may believe a witness although he has been contradicted. They may believe the testimony of one witness and reject the testimony of other witnesses. They may accept part of the testimony of one witness and disregard the remainder.” McCormick & Ray, Texas Law of Evidence, p. 5, § 3;. Austin Fire Ins. Co. v. Adams-Childers Co., 246 S.W. 365 (Tex.Com.App., 1923, adopted by Tex. Supreme Court). In judging the credibility of the plaintiff, the jury was undoubtedly influenced by the fact that on direct testimony he stated he had a ninth grade education, whereas in an application for employment he represented that he had seven years of grammer school, four years high school and six months of college.

“The mere fact that a verdict is against the preponderance of the evidence will not authorize a reviewing court to set it aside, if there is some evidence to support it, or evidence that would support a verdict either way. The court of civil appeals will set aside the verdict and findings of a jury only in cases where they are so against such a preponderance of the evidence as to be manifestly unjust or clearly wrong, or where they show clearly that the finding or verdict was the result of passion, prejudice, or improper motive, or in such obvious conflict with the justice of the case as to render it unconscionable.” 4 Tex.Jur.2d, p. 395, § 838, and authorities cited therein.

“The findings on conflicting evidence are usually regarded as ‘conclusive,’ ‘binding,’ or ‘decisive,’ and will be ‘adopted’ or ‘accepted’ as the findings of the appellate court, unless some good reason is presented that would justify the court in taking some other view.

“A jury finding on facts will not be set aside because it does not appear to be clearly right; it must appear to be clearly wrong before the appellate court will disturb it.

“The fact that the appellate court would not have found as the jury did is not the test to be applied on appeal. The true test is that made by the jury, on firsthand evidence, adduced before them from living witnesses whose credibility and the weight to be given their testimony were determinable by the jury. Where the jury’s findings are in accord with the testimony of different disinterested witnesses, the fact that there is other testimony to the contrary does not authorize the appellate court to overturn the verdict. * * * ” 4 Tex.Jur. 2d 390, § 837, and authorities cited therein. See also p. 375, § 832, same text.

In the application of the rules of law and the authorities above referred to, we overrule all points of error relating to the quantity or quality of the evidence supporting the findings of the jury upon which the Court based its judgment.

Affirmed.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    The FIRST NATIONAL BANK OF MINEOLA, TEXAS, Appellant, v. FARMERS & MERCHANTS STATE BANK OF ATHENS, TEXAS et al., Appellees.
    No. 279.
    Court of Civil Appeals of Texas. Tyler.
    June 1, 1967.
    Rehearing Granted June 29, 1967.
    Rehearing Denied July 20, 1967.

      Ramey, Brelsford, Flock & Devereux, Tom Ramey, Jr., and Michael Hatched, Tyler, for appellant.
    Brundidge, Fountain, Elliott & Churchill, L. E. Elliott, Dallas, for appellees.
   DUNAGAN, Chief Justice.

The appellant brought this suit against appellees as the result of the payment by appellant of certain bank money orders issued by it, upon which the payees’ names had been signed without authorization and cashed at Farmers & Merchants State Bank, which collected them from appellant through Texas Bank & Trust Company, both banks guaranteeing all prior endorsements. Appellant predicated its recovery upon two theories: (1) a legal cause of action based upon appellees’ guarantee of all prior endorsements and/or (2) an equitable cause of action for money had and received.

The case was tried before the court upon an agreed statement of facts. After formal hearing and presentation of briefs by both parties, the court entered judgment that appellant take nothing. At the request of appellant, the court made findings of fact in accordance with the stipulation of the parties, and the conclusions of law forming the basis of his judgment.

The judgment provides in part:

“On the 3rd day of June, 1966, this cause came regularly on to be heard; * * * and the court having fully considered the matter and being of the opinion that the law is with the defendants:
“It is accordingly ORDERED, ADJUDGED AND DECREED that Plaintiff, * * * take nothing by its suit and that defendants, * * * go hence without day and recover their costs in this behalf expended.
“The plaintiff in open court excepted to the judgment and gave notice of appeal to the Court of Civil Appeals for the 12th Supreme Judicial District of Texas at Tyler.

A motion for new trial was not required and none was filed. We are therefore to look to the judgment itself to determine the period within which appellant was required to perfect this appeal by the filing of the appeal bond and transcript with the clerk of this court. Hedley Independent School District v. Doneghy, 358 S.W.2d 724, (Tex. Civ.App., Amarillo, 1962, n. w. h.).

The transcript reflects the following:

Request for findings of fact and conclusions of law was filed on July 26, 1966, a receipt thereof acknowledged by the trial judge on July 29, 1966.

Appeal bond was approved and filed by the District Clerk on August 26, 1966.

On September 26, 1966, the transcript was filed in this court.

The last day for the filing of the appeal bond from the date of June 3, 1966, was July 3rd. However, July 3rd being a Sunday and the following day, July 4th, a holiday, gave the appellant through July 5th to timely file its appeal bond.

The last day for the filing of the appeal bond from July 26, 1966, (the date of filing of judgment) was August 25, 1966.

If the judgment was actually signed on July 29, 1966, the appeal bond and transcript were timely filed.

Rule 306a, Texas Rules of Civil Procedure, provides in part:

“Judges are directed to cause, and attorneys and clerks are directed to use their efforts to cause all judgments, decisions, and orders of any kind to be reduced to writing and signed by the trial judge and the date of signing stated therein; * * *
“In determining the periods within which the various steps of an appeal must he taken, the date of rendition of a judgment or order shall be deemed to he the date upon which the written draft thereof was signed by the trial judge as stated therein. This rule shall apply in determining the time within which to file a motion for new trial, notice of appeal, appeal bond or affidavit in lieu thereof, bills of exceptions, statements of fact in trial and appellate courts, transcript in appellate court, petition for writ of error if appeal is by writ of error, or other procedure in connection with appeal; * * * ” (Emphasis added).

As stated by the Advisory Committee in its comments following Rule 306a, Vernon’s Annotated T.R.C.P., the purpose of this rule “is to enable the appellant to ascertain more definitely when the time to perfect an appeal begins to run.” We do not feel that the last date shown in the judgment meets this test.

The last date in the judgment is not shown to be the date it was signed nor is there any word used in connection therewith that could reasonably be construed as meaning “signed” or as equivalent thereto. Therefore, we do not believe the notation shown immediately above the judge’s signature, “This the 29 day of July, 1966.” is in compliance with Rule 306a, nor even in substantial compliance therewith.

As above reflected on the face of the judgment, same was filed on July 26, 1966. In the case of Lung v. Varga, 400 S.W.2d 1, (Tex.Civ.App., Austin, 1966, n. w. h.) with facts similar to those in this case, the court said:

“We find nothing in the rules which give any legal effect to the date on which a judgment is filed with the Court clerk. Of course the date of such filing is evidence that it was rendered and signed prior thereto, but it does not, of itself, have any legal significance. We are bound in this respect by Rule 306a, T.R. C.P.”

Under Rule 356, T.R.C.P., an appeal bond must be filed within thirty days after the date of rendition of the judgment or order appealed from. Compliance with this rule has been held to be mandatory and jurisdictional to an appeal. The time limits prescribed cannot be dispensed with or enlarged by this court for any reason. Washington v. Golden State Mutual Life Insurance Company, 405 S.W.2d 856, (Tex.Civ. App., Houston, 1966, writ of error ref., n. r. e., 408 S.W.2d 227). Under Rule 306a, for the purpose of determining the time for the various steps on appeal, the date of the rendition of judgment or order appealed from is deemed to be the date upon which the written draft is signed by the trial judge “as stated therein.” In the present record, there is no express or specific statement in the written draft of the judgment appealed from in respect to the date it was signed. In the absence of such a statement, it must be presumed that the judgment was rendered on the date recited on its face, June 3, 1966 — a date more than thirty days prior to the filing of the appeal bond.

In calculating the time from which the various steps of appeal must be taken from the judgment in this case, if it be either the date of June 3, 1966, or the date of its filing, July 26, 1966, a date which was more than thirty days prior to the filing of the appeal bond, appellant’s appeal bond was not timely filed.

While the court rules are to be liberally construed to ensure a fair and equitable adjudication of the rights of litigants, still their plain content may not be ignored. Nor do we have power, where questions in respect to our jurisdiction are involved, to waive the requirements of the rules. Rule 306a is in the nature of a proviso or exception to Rule 356. By its terms the presumption there established is applicable only when the date of signing is “stated therein.” Heard v. Heard, 305 S.W.2d 231, 235, (Tex. Civ.App., Galveston, 1957, writ ref.).

It is elementary that when our jurisdiction is invoked, the transcript must disclose affirmatively that we have such jurisdiction and that if it does not do so, our duty is to dismiss the appeal. Miller v. Esun-as, 401 S.W.2d 150, (Tex.Civ.App., Tyler, 1966, writ ref., n. r. e.).

It appearing from the record that this court is without jurisdiction of this appeal, same is accordingly dismissed.

ON APPELLANT’S MOTION FOR REHEARING

Earlier in this term we dismissed this appeal because the transcript failed affirmatively to disclose that we had jurisdiction. Appellant later filed a supplemental transcript from which, in connection with the original transcript, it now appears that we do have jurisdiction. Appellant has moved for rehearing and that we set aside our former order dismissing the appeal. The motion is well taken and our former order is set aside and the appeal reinstated.

As stated in the original opinion dismissing this appeal, the appellant predicated its recovery upon two theories:

(1) A legal cause of action based upon appellees’ guarantee of all prior endorsements, and/or

(2) An equitable cause of action for money had and received.

Defendants, in addition to their general denial, allege that “Defendants specially deny that the endorsements of said money orders were forged, and in that connection affirmatively aver that the remitter, R. L. Steele, was not indebted to the said Billy Hale or L. A. Murdock, at the time of purchasing said money orders from Plaintiff and did not intend that said payees have any interest in them; that neither of them claim any interest in said money orders; that neither of them have ever demanded payment, and that plaintiff has not paid anything to either of them, and has suffered nothing by reason of said money orders.”

STATEMENT OF FACTS

The facts of this cause were undisputed and were stipulated by all parties as follows:

1.All parties are domestic banking corporations performing a general banking business within the State of Texas; the plaintiff is a corporation organized and existing under and by virtue of the laws of the United States of America, and the defendants are corporations existing and operating under the laws of the State of Texas.

2. On May 31, 1962, plaintiff (“drawer” and “drawee”) issued two bank money orders to R. L. Steele, the person who ordered the said money orders, but whose personal checks in payment therefor were returned to plaintiff subsequent to May 31, 1962, marked “insufficient funds,” and who has not otherwise paid therefor, which money orders were drawn as follows:

(a) In the amount of $7500.00 payable to Billy Hale.

(b) In the amount of $6500.00 payable to L. A. Murdock.

The names of the said payees on each instrument were supplied by the said R. L. Steele, who was not at any material time an employee of any of the parties to this cause; said instruments were issued on behalf of the plaintiff by Betty Brotherton, a teller in plaintiff’s bank; these two instruments were thereupon delivered to the said R. L. Steele in Wood County, Texas.

3. That on the same date, to-wit May 31, 1962, the said bank money orders were presented for payment by R. L. Steele to Farmers & Merchants State Bank at Athens, Texas, endorsed as shown by Exhibits A and B attached to said stipulations, and were paid in full on that date to R. L. Steele by the defendant Farmers & Merchants State Bank at Athens, Texas. The endorsement by R. L. Steele was genuine. The endorsements of the names of Billy Hale and L. A. Murdock on Exhibits, A and B, respectively, were not genuine, but were signed by the said R. L. Steele without the authority of the said Hale and Murdock. Said Billy Hale and L. A. Mur-dock are live persons, but the said R. L. Steele was not indebted to either of them at the time said money orders were purchased by R. L. Steele, and he did not intend that either of them have any interest in said money orders, and neither of them claim any interest in said money orders, and have never demanded payment of any sum on account thereof and plaintiff has not paid anything to either of them.

4. That the said Farmers & Merchants State Bank at Athens, Texas, endorsed the aforesaid money orders with the letters “P.'E.G.,” which is the generally recognized and common abbreviation for “prior endorsements guaranteed”; that the said bank money orders were then forwarded to the defendant Texas Bank & Trust Company of Dallas, which in turn credited the defendant Farmers & Merchants State Bank, Athens, Texas, in the face amount of the two money orders, endorsing them with “prior endorsements guaranteed,” and again forwarded the said instruments in normal banking channels.

5. That subsequently the instruments were presented to the plaintiff for payment and without notice or knowledge that the parties named therein had not actually endorsed the same, the plaintiff in good faith and in its ordinary course of business paid the face amount of the two money orders to the said defendants.

6. That the plaintiff has received the sum of $3,800.00 from R. L. Steele, the party referred to in the original stipulation, relevant to the transaction in question, and that these payments were received in the amounts of $200.00 per month for a period of time regularly until August, 1965, at which time the payments ceased, and the present whereabouts of R. L. Steele are not known. The sum of $10,200.00 is still outstanding for which the plaintiff has received payment from no source.

7. That the plaintiff nor its employees at any relevant time to this transaction had any business relationship with the said R. L. Steele, except for his purchase of the instruments in question. Neither the plaintiff bank nor Mrs. Betty Brotherton, its employee who issued the bank money orders in question, knew the payees L. A. Murdock or Billy Hale, nor did they know that these payees were not to have an interest in the instruments.

TRIAL COURT

After considering briefs filed by both parties, the trial court entered a take-nothing judgment against appellant and, thereafter, made the following Conclusions of Law as a basis for the judgment:

“1. Plaintiff, as payor of the money orders, has no privity with, and hence no cause óf action on, the restricted endorsement ‘Pay to any bank * * * prior endorsements guaranteed.’
“Such endorsements are merely the passport through banking channels (Aetna Casualty & Surety Company v. Corpus Christi National Bank, Tex.Civ. App., 186 S.W.2d 840, w. e. ref. w. m.). The endorsement does not run to a bank which is not a holder in due course but a payor. Republic National Bank of Dallas v. Maryland Casualty Company, Tex.Civ.App., 184 S.W.2d 496; Red Ball Motor Freight, Inc. v. Bailey, Tex.Civ. App., 332 S.W.2d 411 (nre).
“2. Since plaintiff has suffered no loss from the unauthorized endorsement of the names of the payees in the money orders, it has no cause of action because of such unauthorized endorsements.
“3. Since the payees in the money orders have no interest therein and claim none, and plaintiff has lost nothing because of the unauthorized endorsements of the payees’ names, but solely because of its acceptance of worthless checks in payment thereof, there is no equity in the plaintiff’s plea that defendants have money in their hands equitably belonging to plaintiff, and no cause of action for money had and received is shown.
“4. The money orders were payable to bearer.
“Section 9 of the Negotiable Instruments Act, as amended by Chapter 109, Acts of 1961st Legislature, p. 211, provides that when an instrument is payable to a living person not intended to have any interest in it and such fact was known to the drawer or was known ‘to his employer or other agent who supplies or causes to be inserted the name of such payee,’ it is payable to bearer. The Legislature in the emergency clause of the amending statute interpreted its own language to mean that an instrument was payable to bearer when it was payable to a living person not intended to have any interest in it, and such fact is known to ‘the person who inserts or causes to be inserted the name of such payee.’ In view of the issues involved in Liberty Mutual Ins. Co. v. First National Bank of Dallas, 151 Tex. 12, 245 S.W.2d 237, it is clear that the Legislature intended to cover all situations where one person furnished the name of the payee to the actual drawer of the instrument.”

Hereafter, all parties will be designated as they were in the trial court. Appellant’s first point of error reads as follows:

“POINT OF ERROR NO. 1
“The trial court erred in rendering a judgment that plaintiff take nothing and in concluding that appellant did not have a cause of action upon the two theories pleaded, i. e. upon the endorsement guarantees and/or for money had and received.”
Although the facts of this case are undisputed, we think a proper disposition of the legal questions involved requires a thorough understanding and analysis of (1) the nature of the instruments involved, and (2) the nature of the causes of action asserted by plaintiff.

NATURE OF THE INSTRUMENTS INVOLVED

The instruments which form the basis of this suit are denominated “bank money orders.” Such instruments are essentially the same as the familiar “cashier’s check.”

Courts which have dealt with “bank money orders” have treated them as instruments “analogous to cashier’s checks or bank obligations,” 81 Banking Law Journal 669, 674 (1965), and we will treat them accordingly.

A “cashier’s check” is a negotiable instrument and, therefore, comes within the provisions of the Negotiable Instruments Act, 10 C.J.S. Bills & Notes § 5, p. 409. On a cashier’s check, the issuing bank occupies a dual position; it is both drawer and drawee. Howell v. National Bank of Commerce, 181 S.W.2d 837, (Tex.Civ.App., San Antonio, 1944, writ ref.). An examination of the bank money orders here in question reveals that, just as with the cashier’s check, the plaintiff bank was drawer and drawee of both instruments. This fact is significant because plaintiff’s legal cause of action upon the endorsement guarantees arises out of its status as drawee.

Upon the face of each bank money order was printed this warning:

“When cashing this money order, require full identification and endorsement in your presence as claims against you, as an endorser, may otherwise result.”

THE NATURE OF PLAINTIFF’S CAUSE OF ACTION

The following stipulated facts are those which give rise to the causes of action pleaded by plaintiff: The bank money orders were procured by R. L. Steele and made payable to the order of certain named payees, to-wit: Billy Hale and L. A. Mur-dock. The signatures of these payees were signed without authorization by Steele who then deposited the instruments in the Farmers & Merchants State Bank. This bank endorsed the instruments “PEG.” Farmers & Merchants then sent the instruments for collection to the Texas Bank & Trust Company, which endorsed the instruments “Prior Endorsements Guaranteed” and presented the same to the plaintiff which promptly paid them.

In our opinion these facts are sufficient to give plaintiff at least two distinct causes of action: (1) As drawee—a legal cause of action upon defendants’ express warranty guaranteeing the genuineness of all prior endorsements; (2) As drawer or drawee-—-an equitable cause of action for money had and received.

As to plaintiff’s legal cause of action, it is generally recognized that an express warranty of prior endorsements gives the drawee bank a cause of action upon the guaranty itself to recover any funds paid in reliance thereon. In Brady on Bank Checks (3rd Ed., 1962), Sec. 15.10, p. 504, it is‘stated:

“Because of the questionable state of the law as indicated above, it has become almost universal banking practice, buttressed by Federal Reserve Regulations and various clearing house rules, to require all banks collecting checks and other items to include as a part of their indorsement stamps the words ‘Prior in-dorsements guaranteed.’ Such a legend gives a guaranty against forged or unauthorized indorsements running to subsequent holders and to the drawee or payor bank. * * * ”

The validity of this rule is well established in the case law of this and other jurisdictions, Agricultural Ins. Co. v. North Texas Nat. Bank, 57 S.W.2d 229, (Tex.Civ.App., El Paso, 1933, writ ref.); Guaranty Bond State Bank of Athens v. Fraternal Bank & Trust Co., 68 S.W.2d 305, (Tex.Civ.App., Fort Worth, 1933, writ dism.); Guaranty State Bank & Trust Co. v. Lively, 149 S.W. 211, (Tex.Civ.App., 1912, aff., 108 Tex. 393, 194 S.W. 937); National Metropolitan Bank v. United States, 323 U.S. 454, 65 S.Ct. 354 (1944) 89 L.Ed. 383 (1945); Republic Nat. Bank of Dallas v. Maryland Casualty Co., 184 S.W. 2d 496, (Tex.Civ.App., El Paso, 1944, n. w. h.).

As to plaintiff’s equitable cause of action, it is provided in Art. 5932, Sec. 23, V.A. T.S., known as the “Negotiable Instruments Act,” as follows:

“When a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, * * ”

By virtue of this provision, it is well established that a collecting bank does not acquire title to a forged instrument, and that it holds for the rightful owner any funds paid in satisfaction of the forged instrument. It is held that a drawer or drawee, as the case may be, may recover such funds from the collecting bank in an equitable action for money had and received, Fidelity & Deposit Co. of Maryland v. Fort Worth Nat. Bank, 65 S.W.2d 276, (Tex.Com.App., 1933); Greenville Nat. Exchange Bank v. Nussbaum, 154 S.W.2d 672, (Tex.Civ.App., Waco, 1941, writ ref., w. m.); Red Ball Motor Freight, Inc. v. Bailey, 332 S.W.2d 411, (Tex.Civ.App., Amarillo, 1959, writ ref., n. r. e.); First Nat. Bank of Kansas City v. Produce Exchange Bank of Kansas City, 338 Mo. 91, 89 S.W.2d 33, (1935) ; Labor Bank & Trust Co. v. Adams, Tex.Civ.App., 23 S.W.2d 814, (Waco, 1930, no writ); Morris Plan Bank of Fort Worth v. Continental Nat. Bank of Fort Worth, 155 S.W.2d 407, (Tex.Civ. App., Fort Worth, 1941, n. w. h.).

While fine distinctions may be drawn as to the theory upon which plaintiff’s cause of action is based, such distinctions would appear to be academic, because plaintiff sued upon alternative theories, i. e. upon the express warranty and/or for money had and received. The overwhelming weight of the above authorities clearly establishes the validity, in one form or another, of the cause of action pleaded by plaintiff. Significantly, this cause of action has been recognized in cases involving cashier’s checks or instruments in which the bank was both drawer and drawee. Farmers’ Bank & Trust Co. v. Farmers’ State Bank of Brookport, 148 Ark. 599, 231 S.W. 7, (1921); Citizens Fidelity Bank & Trust Co. v. Liberty Nat. Bank & Trust Co., 257 S.W.2d 590, (Ky.1953); Yates-ville Banking Co. v. Fourth Nat. Bank, 10 Ga.App. 1, 72 S.E. 528, (1911); City Bank v. Hamilton Nat. Bank of Washington, 71 App.D.C., 225, 108 F.2d 588, (1939). Under the facts in this case and from the authorities above cited, plaintiff’s Point of Error No. 1 should be sustained unless such causes of action are precluded by any of the grounds stated in the trial court’s Conclusions of Law which we will hereinafter discuss.

Plaintiff by its remaining Points of Error complains that the trial court erred (1) in concluding that plaintiff was not in privity with defendants which precluded plaintiff from suing upon defendants’ guarantee of all prior endorsements of said money orders; (2) in concluding that plaintiff had not sustained a loss from the payment of the bank money orders, and, therefore the plaintiff had no cause of action upon defendants’ endorsement guarantees; (3) in concluding that the bank money orders were bearer instruments, which were properly negotiable by delivery; (4) in concluding that plaintiff has lost nothing because of the unauthorized endorsements of the payees’ names, and therefore there was no equity in plaintiff’s plea for money had and received.

These remaining points will be considered, discussed and disposed of together.

The trial court first concluded that plaintiff was not in privity with the endorsement “Pay any bank * * * prior endorsements guaranteed,” and, therefore, that plaintiff had no cause of action thereon. In considering this conclusion of the trial court, it must be kept in mind that plaintiff was both drawer and drawee of the instruments in question, and a study of the history of this particular endorsement shows that it was specifically designed to run in favor of the drawee bank as an assurance that the instrument had been paid to the proper payee, 8 Zollman, Banks & Banking, Sec. 5631-5636; Brady on Bank Checks, (3rd Ed., 1962), Sec. 8.18.

In support of his conclusion, the trial court cited Republic Nat. Bank of Dallas v. Maryland Casualty Co., supra. In that case, an employee of Gulf Insurance Company procured checks from the company, forged signatures of the payees and cashed them at various places in Dallas. The checks were drawn upon the National Bank of Commerce and were presented to the drawee through the Republic National Bank of Dallas and the First National Bank in Dallas, both of which banks guaranteed all prior endorsements. The plaintiff, as insurer of the drawee bank, paid the total amount of the checks to Gulf Insurance Company and received an assignment of all causes of action upon the checks in favor of Gulf and the National Bank of Commerce. Suit was brought against the collecting banks upon their endorsements, and judgment was rendered against them in the trial court. On appeal, the Court of Civil Appeals concluded that the plaintiff could not prevail against the collecting banks on its assignment from the drawer of the checks. In this regard, the court held:

“Gulf (the drawer) was not the payee of these checks. It was the drawer and a third party was payee. As drawer, the endorsers owed it no duty by virtue of their endorsement. * * * ”

The court went on, however, to affirm the judgment of the trial court on the theory that plaintiff could prevail against the collecting banks by virtue of its assignment from the drawee. As to the collecting banks’ guarantee on all prior endorsements, the court specifically held that there was privity between the collecting banks and the drawee bank.

In particular, the court held:

“In our opinion the only theory upon which the judgment entered can be sustained is that by the assignment from the drawee banks plaintiffs acquired the right to enforce the liability created by the endorsers of the collecting banks to the drawee. The collecting banks guaranteed in writing the genuineness of the prior endorsements. In reliance thereon the drawees paid out their funds and charged same to the account of the drawer.
* * * * * *
“ * * * It is true there was no privity between the drawer and the endorsers as to the endorsements. Privity there was between the drawees and the collecting banks by virtue of their respective endorsements. * * *
* * * * * *
“The liability of the drawee to the drawer and the liability of the endorsers to the drawee are separate and independent matters. * * *
“In our opinion, the assignments evidenced the clear intention to preserve to the plaintiffs the liability of the endorsing banks. We can see no reason why this should not be done. The release by plaintiffs of their rights against the drawees, to our minds, afforded a good and lawful consideration for the transfer by the drawees of their causes of action against the collecting banks guaranteeing the endorsement of the payees.
“A drawee bank paying a check to one not having title thereto, pays out its own funds and not those of the drawer. In case of one presenting the check endorsing same in the manner the checks are here endorsed by the collecting banks, such collecting banks are liable to the drawee. American Sash & Door Co. v. Commerce Trust Co., 332 Mo. 98, 56 S.W. 2d 1034.” (Emphasis added).

It is clear from the above authorities that privity does exist between the collecting banks and the drawee bank on a specific guarantee of prior endorsements. It is in the capacity of drawee in the case at bar that plaintiff brought its legal cause of action upon defendants’ endorsements.

We hold that privity did exist between plaintiff and the defendant banks.

In the case of Red Ball Motor Freight, Inc. v. Bailey, supra, a suit was instituted against a collecting bank of a drawer of checks which were cashed upon forged endorsement. The court held that the plaintiff, as drawer, did not have a cause of action upon the endorsements of the intermediary collecting banks, but did have a cause of action for money had and received. This holding is correct as far as the rights of a drawer are concerned. However, since the drawee was not a party to the suit, we do not consider that the Red Ball case is authority that there is no privity between a drawee and the collecting banks.

The trial court has further concluded that plaintiff did not sustain any “loss” from the unauthorized endorsements of the payees’ names on the bank money orders, and, therefore, that plaintiff had no cause of action arising from its payment of the instruments. Plaintiff’s legal cause of action is not one for compensatory damages, but it is an action to recover a specific fund paid to defendants in reliance upon their affirmative guarantees. The plaintiff argues that “If Farmers & Merchants^had determined the genuineness of the payees’ signatures, as they were required to do, they would have ascertained that their endorsements were unauthorized; they would not have cashed the money orders; and they would not have received payment from the Plaintiff.” Farmers & Merchants State Bank did not do this, however, and instead, they paid the instruments to the one who had no legal right thereto. It then proceeded to and did collect the money orders from the plaintiff by guaranteeing (along with Texas Bank & Trust Co.) that the payees’ endorsements were genuine. These guarantees prompted plaintiff to part with its funds in satisfaction of the money orders because they were express representations that the instruments had been paid to the proper parties. Up until this payment, plaintiff had parted with nothing of value. It is the payment of the money orders to defendants, who had no legal right to collect them, which constitutes plaintiff’s loss, and it is clear that defendants’ guarantees were designed to cause this payment.

The defendants argue that “Equity recognizes that he who trusts most must suffer most. If plaintiff bank trusted Steele to give it valuable checks for the money orders in question, it certainly must bear the loss resulting from those acts. It cannot shift that loss to another, who had nothing to do with the acceptance of the checks. Plaintiff’s loss results from the trust that the plaintiff bank put in Steele; and it must bear the resulting loss.”

It is not disputed that the plaintiff has sustained a loss from the transaction in this case. The only question is what caused the loss. It is rather clear that the loss was caused by the combination of (a) the return of Steele’s checks marked “NSF,” and (b) the action of the Farmers & Merchants State Bank in improperly paying the money orders. It is true that, if Steele’s checks had been good, the loss would not have resulted. But it is equally true that, if the Athens bank had not wrongfully cashed the money orders, plaintiff would not have paid out its funds and no loss would have resulted. It is the payment of this fund which constitutes the loss sued for, and it is clear that this payment was the direct result of the action of said bank. Therefore, it cannot be said that plaintiffs’ acceptance of Steele’s checks was the sole cause of the loss in question.

The situation presented here is simply another of the “fictitious payee” cases which affirmatively recognize the validity of the cause of action asserted here, all of which expressly reject the “no loss” argument advanced by defendants. A comparison between the case at bar and other “fictitious payee” cases clearly supports this view. Labor Bank & Trust Co. v. Adams, supra; Morris Plan Bank of Fort Worth v. Continental Nat. Bank of Fort Worth, supra; First Nat. Bank of Winnsboro v. First Nat. Bank of Quitman, 299 S.W. 856, (Tex.Com.App., 1927); American Express Co. v. People’s Sav. Bank, 192 Iowa 366, 181 N.W. 701; First National City Bank of New York v. Manufacturers Trust Co., 39 Misc.2d 428, 240 N.Y.S.2d 669, (1963); and Mohawk National Bank of Schenectady, N. Y. v. Citizens Trust Co., 38 Misc.2d 222, 237 N.Y.S. 2d 956, 958. In the latter case, the bank issued its cashier’s check in exchange for a forged and worthless promissory note. The court held that the fact that the note was a forgery had no bearing on the liability of the collecting bank, since the latter’s liability stemmed solely “from its breach of guaranty.”

This precise point was thoroughly discussed in City Bank v. Hamilton Nat. Bank of Washington, supra. In that case, the Hamilton National Bank took two promissory notes allegedly signed by Arthur Ber-man and wife. The bank then issued and delivered to Berman its cashier’s checks payable to the order of Berman and wife for the amount of the promissory notes. These checks were delivered by Berman to the City Bank for deposit to his account. The checks were endorsed by City Bank “prior endorsements guaranteed” and were collected by the City Bank from the Hamilton bank to the clearing house. It was later revealed that the signature of Mrs. Berman on the promissory notes was a forgery, and that her name had also been forged to the cashier’s checks when they were cashed at the City Bank. Thereafter, Arthur Berman died and his wife refused to pay the balance due on the promissory notes. Therefore, the Hamilton bank sued the City Bank to collect upon the latter’s endorsement guarantee. The City Bank interposed precisely the same defense urged by defendants in this case, and the Court of Appeals disposed of the argument as follows:

“Nor do we think there is any greater merit in City Bank’s other defense. The ground relied upon is that Hamilton Bank’s less flowed from its own act in lending money on promissory notes with the forged signatures of one of the makers. On this theory, City Bank says that, in guaranteeing the indorsements on the cashier’s checks, it did nothing to lessen the value of the promissory notes; * * *. Hamilton Bank, in issuing the checks, made them payable to both hus- and and wife and thereby indicated that they were the persons intended to receive the proceeds. It parted with none of its money when it accepted the notes. Its loss occurred when it paid the checks upon the guaranty of City Bank of the validity of the indorsements of Bernice Berman. * * * The loss sued on occurred as the result of reliance by Hamilton Bank on the guaranty of City Bank that the indorsements were valid. In this aspect, City Bank received from Hamilton Bank money to which it was not entitled. Upon discovery, Hamilton Bank demanded return, less the amount which had been restored by the forger. The rule in these circumstances is that the bank which has drawn the cashier’s check on itself may recover from the collecting bank when the indorsement has been forged. * * *”

Another case which is of particular interest is the case of American Express Co. v. People’s Sav. Bank, supra, because the plaintiff in that case had issued drafts in exchange for NSF checks exactly as in the case at bar. The court held that the acceptance of the worthless checks was a “mere incident of the case,” and that the plaintiff, as drawee, was entitled to recover from the collecting banks, which had cashed the drafts upon a forged instrument, “without pleading and proving a special damage.” The court held:

“If a drawee pays an instrument to one who claims under a forged or unauthorized indorsement, he can recover back even from a holder in due course. The holder did not own or secure title to the instrument that was paid. The payment was due to another. Suppose Crozer had indorsed in the same manner and presented the drafts to the drawee and received payment thereon. Plaintiff would be in the same position as it is now as to Crozer. It could sue him for money had and received. The defendant bank, if title failed, is in the same position, and is liable for money had and received, * * * ft

To reach the result contended for by defendants in this case, therefore, this court would have to hold contrary to this established line of authority.

In this case plaintiff did not part with its money upon accepting Steele’s check. Its loss occurred when it paid the bank money orders upon the guaranty of the defendant banks of the validity of the endorsements of the payees. Therefore, the loss sued on occurred as the result of reliance by plaintiff on the guaranty of the defendant banks that the endorsements of payees were valid.

If the endorsements of the payees on said money orders had been genuine, of course, the defendants would not be liable to plaintiff. In that event, plaintiff would have to look to Steele only to recoup its loss, because its loss would have occurred solely by its acceptance of Steele’s worthless check.

The trial court also concluded that no cause of action existed on the defendants’ endorsement guarantees, because the money orders were bearer instruments, which lawfully could be negotiated by the possessor upon delivery. The basis for the conclusion is Sec. 9 of Art. 5932, V.A.T.S., as amended in 1961, which reads as follows:

“Sec. 9. The instrument is payable to bearer:
* * * * * *
“(3) When it is payable to the order of a fictitious or nonexisting person or to a living person not intended to have any interest in it and such fact was known to the drawer or was known to his employee or other agent who supplies or causes to be inserted the name of such payee; * * *»

It is stipulated that R. L. Steele was the only person who intended the payees of the bank money orders not to have any interest in the instruments. It is further stipulated that Steele was not the drawer of the instruments, nor was he an employee of the plaintiff. Therefore, since Steele was the person who intended the payees not to have an interest in the money orders, to make the bills bearer instruments under the above statute, the trial court evidently concluded that Steele was an “agent” of the drawer bank. An examination of the history of Sec. 9(3), however, reveals this conclusion is untenable.

Prior to 1961, Sec. 9(3) read as follows:

“Sec. 9. The instrument is payable to bearer:
‡ ⅝ ⅜ ⅜ ⅜ ⅜
“(3) When it is payable to the order of a fictitious or nonexisting person, and such fact was known to the person making it so payable.”

This section was amended to its present form in 1961 to reconcile conflicting decisions construing the section. The conflict centered upon a construction of the phrase “person making it so payable.” One line of cases held that the “person making it so payable” was the person who actually signed the instrument. Another line of cases held that the “person making it so payable” included the employees or agents of the actual drawer, even though such agents or employees merely supplied the name of the fictitious payee and did not actually sign the instrument. See Red Ball Motor Freight, Inc. v. Bailey, supra; Dorsey v. Houston National Bank, 338 S.W.2d 540, (Tex.Civ.App., Waco, 1960, writ ref.); Liberty Mutual Ins. Co. v. First Nat. Bank in Dallas, 151 Tex. 12, 245 S.W.2d 237, (1952). We wish to point out, however, that none of the conflicting cases considered an extension of the requisite knowledge to persons other than employees or agents of the actual drawer. This is the area in which there was division of authority giving rise to the 1961 amendment. There are no cases that we can find and none have been cited to us construing Section 9(3) as amended, but we believe that the agreed facts, in light of the statute’s wording, clearly show that R. L. Steele, in procuring the money orders, was not an “agent” of the plaintiff.

Steele was not an agent of the plaintiff in a legal sense. In construing the statutes, it is well established that every word or phrase in the statute is presumed to have been used intentionally with a meaning and purpose, and when a word has a settled legal significance, it is presumed to have been used in that sense. 53 Tex. Jur.2d 271, Sec. 181. In law, an agent is defined as “one who is authorized by another to transact business or manage some affair for him, and to render to him an accounting of such transaction,” 2 Tex.Jur.2d 436, Sec. 1. In regard to the creation of agency, the general rule is well stated in 3 Am.Jur.2d 428, Agency, Sec. 17, where it is said:

“ * * * As between the parties to the relation, there.must be a meeting of the minds in establishing the agency, and the consent of both the principal and the agent is necessary to create the agency, although such consent may be implied rather than expressed. The principal must intend that the agent shall act for him, the agent must intend to accept the authority and act on it, and the intention of the parties must find expression either in words or conduct between them.”

No agency relationship can be said to exist unless the actions of the alleged agent are within the control of the principal, Bertrand v. Mutual Motor Co., 38 S.W.2d 417, (Tex.Civ.App., Eastland, 1931, writ ref.). The only contact which R. L. Steele had with the plaintiff bank in this case was to purchase the bank money orders. From this single contact, it is difficult to see how there could have been a meeting of the minds between plaintiff and Steele sufficient to create an agency. Nowhere do the facts show that Steele was authorized, as a result of this single transaction, to act for the bank, nor is there any evidence showing that Steele’s actions were under the control of the plaintiff. From the facts as herein reflected, it is our opinion that the dealings between Steele and the plaintiff did not create a legal principal-agent relationship.

Without any doubt, R. L. Steele cannot under the facts be said to have been an employee or representative of the plaintiff in the conduct of its business affairs, and consequently Steele was not an “agent” under Section 9 (3) of Art. 5932.

As to plaintiff’s equitable cause of action for money had and received, the trial court in its Conclusion No. 3 found that plaintiff “lost nothing” because of the unauthorized endorsements and its loss actually resulted from its acceptance of “worthless checks” from R. L. Steele. For this reason, the trial court concluded that there was “no equity in plaintiff’s plea” for money had and received.

This conclusion is essentially the same as the court’s Conclusion No. 2 which we have hereinabove discussed. However, this conclusion was obviously made specifically in connection with plaintiff’s equitable cause of action for money had and received.

The question of “loss” as it relates to a claim (like plaintiff’s) for money had and received was discussed in First Nat. Bank of Kansas City v. Produce Exchange Bank of Kansas City, supra, and decided adversely to this conclusion of the trial court. In that case, the bookkeeper of a corporation gave corporation checks to the plaintiff bank in exchange for the bank’s cashier’s checks payable to designated payee. He cashed these checks after forging the payee’s endorsements. Plaintiff sued to recover the funds paid to defendant as the collecting bank. Plaintiff had been reimbursed for its loss from its insurance company, and defendant pleaded that plaintiff could not maintain its suit because plaintiff’s loss “was not sustained by reason of the issuance” of the cashier’s checks. In disposing of this contention, the court held:

“ * * * < * * * Thg suit is not one for damages but to recover money the defendant bank had and received, but to which it never had title and for which it gave plaintiff no consideration. The plaintiff, the moment it paid out the money on the forged indorsements had a cause of action against defendant, which arose immediately. The suit is to recover the money, and is not dependent upon whether a loss will eventually accrue to plaintiff, nor is the suit based upon the checks * * * ’.”

To the same effect is American Express Co. v. People’s Sav. Bank, supra.

As the above authorities illustrate, plaintiff’s plea for money had and received is not based upon the cashier’s checks, nor is it based upon the checks given by Steele. It is an action to recover a specific fund paid by plaintiff to defendants, which fund the latter had no right to receive. The fact that defendants would have been entitled to the fund if the payees’ endorsements had been genuine has no effect upon the plea for money had and received under the facts of this case. Commercial Credit Corporation v. Citizens National Bank, 144 S.E.2d 784, 788, (West.Va.Sup., 1965).

Plaintiff’s cause of action cannot be eliminated merely because it may have other remedies to reimburse its loss, Liberty Mutual Ins. Co. v. First Nat. Bank in Dallas, supra.

The only other contention advanced is that the court would look to the emergency clause of the amendment to determine the intention of the Legislature in passing the 1961 amendment. Apparently, the court is being asked to disregard the actual language of the statute itself, as well as the title and preamble, and to consider only the emergency clause in determining the legislative intent. In the case of Texas Employers’ Insurance Association v. Shirey, 391 S.W.2d 75, (Tex.Civ.App., Austin, 1965, n. w. h.) where the same contention was made as is here made, the court said:

“We overrule this point. The intention of the Legislature is to be derived from the language used by it and not by what language we may believe it intended to use. An emergency clause in a statute may not be invoked to create an ambiguity in a statute or to control its plain meaning or purpose. * * * ”

See Missouri-Kansas-Texas R. Co. of Texas v. Thomason, 280 S.W. 325, (Tex. Civ.App., Austin, 1926, writ ref.) ; Statutes, 53 Tex.Jur., Sec. 170, p. 249.

Moreover, the emergency clause involved here does not in itself support the conclusion suggested by defendants. A careful reading of the clause in the light of the language of the statute demonstrates that the legislative intent was not to extend the requisite knowledge beyond the drawer, his employee or “other agent.” It is manifestly clear that the Legislature did not undertake to extend the effect of such knowledge to “any person” as suggested by defendants. This view finds support in the trial court’s Conclusions of Law as well as defendants’ oral and written presentation wherein it is recognized that the amendment was enacted specifically to clarify the law regarding the “faithless employee” situation such as presented in Liberty Mutual Ins. Co. v. First Nat. Bank in Dallas, supra. The “confusion and division of authority” had arisen by reason of holdings in various other dishonest employee cases. Dorsey v. Houston National Bank, supra; Red Ball Motor Freight, Inc. v. Bailey, supra; Republic Nat. Bank of Dallas v. Maryland Casualty Co., supra.

For all the reasons above stated, the judgment of the trial court is reversed and judgment is here rendered for appellant in the sum of $10,200.00, and such judgment shall bear interest at the rate of six percent per annum from the 29th day of July, 1966, the date of the judgment in the trial court, until paid.

      I. In Munn’s Encyclopedia of Banking & Finance (1962 Revision) a “bank money order” is defined as “a form of money order issued and sold by banks, as distinguished from postal and express money orders. They are practically a modified form of cashier’s check, and unlike postal money orders may be endorsed any number of times * * * ”

      . See Art. 5932 et seq., Vernon’s Ann.Tex. St.

      . It is agreed by the parties that this abbreviation is generally recognized as the common abbreviation for “Prior Endorsements Guaranteed.”


author: SELLERS, Justice.

text:
    Marian Kay USSERY, a Minor et al., Appellants, v. EWELL HODGES, INC., et al., Appellees. Ira D. USSERY et ux., Appellants, v. EWELL HODGES, INC., et al., Appellees.
    Nos. 285, 286.
    Court of Civil Appeals of Texas. Tyler.
    June 29, 1967.
    Rehearing Denied July 20, 1967.
    Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer and Frank T. Abraham, Houston, for appellants Ussery.
    Strasburger, Price, Kelton, Martin & Unis, Royal H. Brin, Jr., Arthur M. Albin, Dallas, for appellants Conaway and Smith.
    Johnson, Hathaway & Jackson, Thomas W. Hathaway and Ben Johnson, Tyler, for appellees Hodges and Vandekop.
    Ramey, Brelsford, Flock & Devereux, Donald Carroll and Michael A. Hatchell, Tyler, for appellees Thornton and Swann-Furniture Co.
   SELLERS, Justice.

This suit was instituted for personal injuries to Mr. and Mrs. Ira D. Ussery and their minor children, Marian Kay Ussery and Barbara Ann Burns, received when the Volkswagen in which they were riding was struck from the rear by a large Mack truck owned by Ewell Hodges, Inc. and operated by its employee, Peter Albert Vandekop. The Volkswagen belonged to Horace Smith, Inc., an automobile dealership, and the Us-serys were trying it out as prospective purchasers. James T. Conaway, a salesman employed by Horace Smith, Inc., was sitting beside Mrs. Ussery, who was driving, and Mr. Ussery and the children were in the back seat.

A pickup truck owned by Swann Furniture Company and driven by its employee, Leonard B. Thornton, was between the Volkswagen and the Mack truck as the three vehicles proceeded in a Westerly direction on Highway No. 64 prior to the accident.

Mrs. Ussery slowed down gradually and turned to the right to enter the broad entrance leading to a motel, and Thornton likewise pulled to the right and entered the driveway of the motel. Vandekop, in the Mack truck, then collided with the Volkswagen.

The Ussery family brought this suit against Ewell Hodges, Inc., Vandekop, and Thornton. Ewell Hodges, Inc. and Vande-kop filed a third-party complaint complaining of Thornton and Swann Furniture Company and also Conaway and Horace Smith, Inc.

The jury found that Vandekop was guilty of negligence in following too closely and in failing to properly apply his brakes, and that each of those grounds of negligence was a proximate cause of the accident. There was no finding of causative negligence on the part of Horace Smith, Inc., Conaway, Swann Furniture Company, or Thornton. The jury found one ground of causative negligence against Mrs. Ussery— failure to give a signal of her intention to make a right turn continuously for at least one hundred feet.

On this verdict, the District Court award-éd the minors, Marian Kay Ussery, $90,-Q00.00, and Barabara Ann Burns, a $2,000.-00 judgment against Vandekop and Ewell Hodges, Inc., but did not include in the judgment the medical and hospital expenses incurred for the minors from the date of the accident until time of trial, the amount of which was agreed to; nor such expenses which the jury found would be required in the treatment of Marian Kay Ussery from the time of trial until she reached twenty-one years of age ($20,000.00), and denied any recovery to Mr. and Mrs. Ussery although the jury found $5,000.00 for Mrs. Ussery and $7,500.00 for Mr. Ussery. The trial court’s judgment awarded Vandekop and Ewell Hodges, Inc. contribution from Conaway and Horace Smith, Inc. in the amount of one-half of the recovery against them. From this judgment, Vandekop and Ewell Hodges, Inc. did not appeal.

Conaway, Horace Smith, Inc., and all of the Usserys have appealed, variously raising a number of points of error; however, one point was raised by all appellants which, in our view, becomes determinative of the entire case. It is that under this record the finding that Mrs. Ussery’s failure to give a signal was a proximate cause of the accident was not supported by any evidence of probative force. It is doubtful that there is any evidence beyond a scintilla that Mrs. Ussery failed to give a turn signal. There is direct and positive testimony by both Mr. Ussery and Conaway that she did turn on the right-turn signal light. Mrs. Ussery had no recollection of the facts of the accident and no one testified affirmatively to the absence of a signal. Thornton saw a light on the right rear corner of the Volkswagen but didn’t know whether it was a turn signal or the brake light. Van-dekop testified that he could not see the Volkswagen because of the pickup truck in between until the pickup turned out to the right immediately before the collision so that he could not have seen a signal being given before the turn, if there was one.

However, assuming that no proper signal was given, we hold that there is no evidence of probative force in the record to support a finding that such failure was a proximate cause of this accident. The only witnesses whose testimony is relevant in this connection are Vandekop and Thornton. Vande-kop’s testimony was that because of the pickup truck in between, he could not see the Volkswagen until the pickup turned to the right “just slightly before the impact”; that the Volkswagen “immediately made a turn to the right also” and that this was “just a splits second” before the collision. Thus, according to his own testimony, he could not have seen any signal given by Mrs. Ussery until immediately before the collision when he was as little as thirty feet away with no more than a “split second” left and with everything happening “in practically a flash.” A signal could not have affected his actions or enabled him to prevent the accident in view of his testimony that he was going about forty miles per hour and that it would probably take 150 feet to stop the truck at that speed. (In his deposition, he had testified that it would take 250 feet, not including reaction of another 25 feet.) Since his own estimate of the distance of the Volkswagen when he first saw it was from 30 feet to, at the most, 60 feet, it is clear from his own testimony that no signal would have enabled him to stop or otherwise avoid the accident. Moreover, when the Volkswagen did come into Vandekop’s view, he actually observed that it began turning to the right so that a signal would not have added to his knowledge or caused him to do anything different than he did in the fraction of a second available.

Vandekop himself did not attribute the accident to the failure of Mrs. Ussery to give a signal, and on examination by his own counsel recognized that when there is a line of cars of two or more in succession “you must rely on the car in front of you to drive and signal as to what is happening in front.” Likewise, there is no evidence that Thornton would have acted any differently if there had been a signal from Mrs. Ussery, since he testified that he was conscious as soon as he became aware of the Volkswagen that it was slowing down and “in the process of preparing to make a right turn into the motel driveway”, and when he first noticed it “it was turning to the right and slowing very rapidly, yes, sir.” He testified that he could and would have brought his pickup truck to a complete stop if necessary and would have been able to avoid collision with any part of the Volkswagen but turned to the right only because he was afraid that the Mack truck would hit him. He testified that he was “aware of the movement of the Volkswagen automobile sufficiently” to appraise and acquaint himself “with the fact that she was obviously angling into and making a turn into the motel driveway.” While, of course, he could not have had positive knowledge of what the Volkswagen was going to do, he believed it was going to turn to the right and acted on the assumption, and testified that it “would have made no difference one way or the other” whether her signal had been on for 150-200 feet or not.

Thornton testified that just before he turned off to the right, he looked in his rear-view mirror and “I saw a mirror full of radiator of that truck.” He turned aside not because of any sudden action of the Volkswagen, but because he was afraid that the Mack truck would hit him, stating that when he saw it looming in his rear-view mirror “I realized I had to get out of the way, I was fixing to be run over and immediately got on my accelerator as I cut my wheels back to the right.” His testimony also includes the following:

“Q Did you look in the mirror and see the truck or did you actually at the time turn around and look at the truck ?
“A Through my rear-view mirror.
“Q Were you or not concerned with its presence there behind you?
“A Yes, sir.
“Q I believe you told us that that was the reason that you made the turn off the highway.
“A Yes, sir.
“Q Did you actually look at it for a matter of a couple of seconds or so just before turning off?
“A No, sir.
“Q How did you look at it?
“A Just through my rear-view mirror.
“Q Did you look at it sufficiently for a couple of seconds or so to determine whether or not you needed to turn off and get out of its way?
“A When I saw it in my rear-view mirror, I knew then I had to get out of the way.
“MR. JOHNSON:
“We renew our objections to that testimony as being a conclusion of the witness.
“THE COURT: Overrule.
“MR. ALLEN:
“Q Judging and knowing from the speed at which you were traveling and the speed at which the Volkswagen ahead of you was traveling, assume, if you will, Mr. Thornton, that the Volkswagen had brought itself to a stop there ahead of you, could you or could you not from the position you were in behind it, and at the speed that you were traveling behind it, have likewise brought your pickup to a stop?
“A Yes, sir.
“Q Without hitting the Volkswagen?
“A Yes, sir.”

There is no evidence at all in the record to indicate that a turn signal would have caused Thornton to do any act any differently or that any such different action on his part whatever it might be speculated to be would have led Vandekop to have taken some action which would have avoided the collision.

We recognize that proximate cause is ordinarily a question of fact for the jury; however, it may become a question of law when the evidence is such that reasonable minds could not differ. The causal connection must be established beyond the point of conjecture. Bowles et al. v. Bourdon et al., 148 Tex. 1, 219 S.W. 2d 779, 13 A.L.R.2d 1; Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352. Mere surmise or speculation is not sufficient. As the Supreme Court stated in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059,

“ * * * though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, such testimony, in legal contemplation, falling short of being ‘any evidence’; * *

Hill v. W. E. Brittain, Inc., Tex.Civ.App., 405 S.W.2d 803; Freeman v. Harkrider, Tex.Civ.App., 320 S.W.2d 238; Rounsa-ville v. Bullard, 154 Tex. 260, 276 S.W.2d 791.

Particularly pertinent here is Dobson v. Gulf Supply Co., Inc., Tex.Civ.App., 399 S.W.2d 882. The jury finding of failure to give a stop signal and proximate cause there are parallel to the finding of failure to give a turn signal and proximate cause here. The Court there first states:

“Appellees contend that the fact Anderson testified he didn’t see appellant’s brake lights come on although he was looking at her car, is some evidence that the lights did not come on. We do not agree in view of Anderson’s testimony as a whole. His statement that he imagined appellant’s brake lights came on, coupled with his testimony that he did not pay that much attention, clearly indicates that he didn’t know or remember what happened. Furthermore, there is no testimony by Anderson that he would have seen appellant’s brake lights had they come on or that he could have seen appellant’s brake lights from his position in the truck while following about three feet behind appellant’s car. The fact that he was looking at appellant’s automobile constitutes no evidence more than a scintilla that he was also looking at her brake lights.”

Then the Court went on to hold that even assuming that the brake lights did not come on and that there was no signal of intention to stop, as a matter of law, that could not have been a proximate cause since it would have added nothing to the truck driver’s knowledge beyond what he observed by watching the car itself, and since he would not have had time to do anything to avoid the accident if the brake lights had come on:

“If we assume without any proof thereof, that appellant’s brake lights did not come on, such failure would not constitute a proximate cause of the collision in question in view of the fact that according to the testimony of appellee Anderson his truck was only three feet or thereabouts behind appellant’s automobile. Nothing would have been accomplished by the brake lights coming on, since according to Anderson he was looking directly at appellant’s automobile and applied the truck brakes immediately when appellant’s car suddenly stopped. In following about three feet behind appellant’s car he was too close thereto to stop regardless of the illumination or lack of illumination of appellant’s brake lights. Hence the finding of the jury that appellant’s failure to give a warning was a proximate cause of the collision is, for such reason also, not supported by any evidence of probative force.”

The element of proximate cause missing here is that of “cause in fact.” For proximate cause to exist, there must be both causation in fact and foreseeability. The act or omission must be one but for which the accident or injury would not have occurred. Jennison v. Darnielle, Tex. Civ.App., 146 S.W.2d 788; Watkins v. Davis, Tex.Civ.App., 308 S.W.2d 906; McCauley v. Lasher, Tex.Civ.App., 368 S.W. 2d 49; Parker Food Stores, Inc. v. Pierce, Tex.Civ.App., 374 S.W.2d 699. Proximate cause cannot be established by mere conjecture or guess. Leatherwood Drilling Company v. TXL Oil Corp., Tex.Civ.App., 379 S.W.2d 693; Paris & G. N. Ry. Co. v. Stafford, Tex.Com.App., 53 S.W.2d 1019; Western Telephone Corp. of Texas v. McCann, 128 Tex. 582, 99 S.W.2d 895; Phillips Petr. Co. v. West, Tex.Civ.App., 284 S.W.2d 196.

In Gause-Ware Funeral Home v. Mc-Ginley, Tex.Civ.App., 21 S.W.2d 347, the failure of a driver to give a signal of his approach to an intersection was held as a matter of law not to constitute a proximate cause of the accident because the opposite party had seen the approach of the vehicle. Likewise, Dallas Railway & Terminal Co. v. Walsh, Tex.Civ.App., 156 S.W.2d 320, affirmed 140 Tex. 385, 167 S.W.2d 1018, held that if the bus driver failed to keep a proper lookout, such negligence, as a matter of law, was not a proximate cause of the accident. The Court said:

“ * * * A proximate cause must, first of all, be a cause. There was a total absence of any evidence to show that had the driver of the bus kept a proper lookout, he could have seen the approach of the ambulance before the time which, according to the uncontroverted evidence, he did see it. There was a high hedge intervening, neither through which, nor over it, could the bus driver see the ambulance until he was entering the intersection. Hence, as a matter of law, we think any failure to keep a proper lookout is affirmatively shown not to have caused the injuries.”

The intervening hedge there is similar to the intervening pickup here. In view of our holding that there is no probative evidence that failure of Mrs. Ussery to give a turn signal was a proximate cause of collision, it is unnecessary to pass upon the other points of error asserted. Since the one ground of negligence proximately causing the accident found against Mrs. Ussery cannot stand, Mr. and Mrs. Ussery are entitled to recover from Ewell Hodges, Inc. and Vandekop for their own personal injuries. The medical expenses of the minors from the date of the accident until the time of trial and of the minor, Marian Kay Ussery, from the time of trial until reaching the age of twenty-one (21) years are likewise recoverable.

Since the recovery for contribution against Horace Smith, Inc. and Conaway was based solely upon imputation of Mrs. Ussery’s negligence to them, it cannot stand.

Therefore, the judgments below are affirmed in part, and reversed anci rendered in part in accordance with what has been herein held, and all costs in the court below and of this appeal will be taxed against the appellees, Ewell Hodges, Inc. and Van-dekop.


author: MOORE, Justice.

text:
    STATE of Texas et al., Appellants, v. H. S. DAVENPORT, Jr., et al., Appellees.
    No. 301.
    Court of Civil Appeals of Texas. Tyler.
    June 29, 1967.
    Rehearing Denied July 20, 1967.

      A. D. Henderson, Palestine, for appellants.
    Johnston & Johnston, Luther C. Johnston, Franklin C. Williams, Palestine, for appellees, H. S. Davenport, Jr., and others.
    Pitman & Stilwell, Thomas H. Stilwell, Palestine, for appellee, Wade Streetman.
    John B. McDonald, Palestine, for ap-pellee, Webb Bratz.
   MOORE, Justice.

This is a condemnation proceeding. Plaintiff, the State of Texas, acting by and through the City of Palestine, brought this suit to condemn certain properties owned by the defendants lying within the City Limits of Palestine, Texas. The City of Palestine, acting in its own behalf, joined in the suit as a party plaintiff. Plaintiffs alleged in their petition for condemnation that:

“The State Highway Commission of • the State of Texas has found and determined that it is necessary and convenient to run said highway across said hereinabove described tract of land, and the City of Palestine, Anderson County, Texas, has found and determined that it is necessary to acquire fee simple title to said tract of land, pursuant to existing law, same to be paid for by said City, with title thereto vesting in the State of Texas, for the purpose of constructing, reconstructing, maintaining, widening, straightening, and lengthening said highway, through these Proceedings in Eminent Domain; * * *” (Emphasis added).

The prayer was for the appointment of Special Commissioners to assess the damages to be allowed the owner or owners of said land, “same to be paid for by said City,” and for such other proceedings, orders and judgment “vesting fee simple title to said land in the State of Texas, *

Special Commissioners were appointed by the court and after a hearing, the Commissioners rendered an award dated March 12, 1965, apportioning damages among the various defendants. Thereafter, funds were deposited into the Registry of the Court in accordance with the various awards and were withdrawn by the con-demnees.

On March 16, 1965, the City of Palestine filed its objections to the award of the Special Commissioners, which read in part as follows:

“Now comes The City of Palestine, one of the Plaintiffs in the above styled Proceedings in Eminent Domain and objects to the Award of the special commissioners, * * * heretofore appointed * * * to assess the damages against the Plaintiff, The City of Palestine, and The State of Texas, by the taking of land, * * * »

Then followed the specific objections wherein the award was objected to on the ground that the damages were excessive and that same were arrived at by improper methods. The instrument concluded with a prayer, praying that the landowners be cited to appear and answer therein and that the cause be tried in the County Court of Anderson County, Texas, as in other civil cases. The instrument was signed “The City of Palestine” by A. D. Henderson, City Attorney, and was properly filed with the County Clerk of Anderson County, Texas.

After being served with citation, each of the defendants filed a motion to dismiss the objections, alleging that the City of Palestine and the State of Texas were joint plaintiffs and joint condemnors, and as such, neither of them, acting alone, could file objections and properly perfect an appeal without the joinder of the other. In other words, they asserted that before an appeal could be perfected, it was necessary for all party plaintiffs to file objections; that since the objections filed by the City failed to show that the State of Texas joined therein, or that the State was a party to the objections, either directly or acting by and through the City, there were no objections by the State. Consequently, they reason that the objections pending before the court, joined in by only one of the condemning parties, were not sufficient to properly perfect an appeal to the County Court. Defendants prayed that the objections be dismissed and that the decision and award of the Special Commissioners be made the judgment of the court.

On January 18, 1967, the trial court, without a hearing, entered an administrative order making the award of the Special Commissioners the judgment of the court. The order recited that no objections to the award had been filed by either party.

Both the State of Texas and the City of Palestine excepted to the ruling of the court and gave notice of appeal. By a single point of error, plaintiffs assert that the trial court committed reversible error in dismissing the objections thereby denying plaintiffs the right of an appeal.

The right of an appeal from the award of the Special Commissioners is provided for in Subdivision 6 of Art. 3266, Vernon’s Ann.Civ.St., as follows:

“If either party be dissatisfied with the decision, such party may, on or before the first Monday following the 20th day after the same has been filed with the county judge, file his objections thereto in writing, setting forth the grounds of his objection, and thereupon the adverse party shall be cited and the cause shall be tried and determined as in other civil causes in the county court. * * * ”

It is also provided in Subdivision 7 of the foregoing Article that:

“If no objections to the decision are filed within the time prescribed by Subdivision 6 of this Article, the County Judge shall cause said decision to be recorded in the minutes of the County Court, and shall make the same the judgment of the court * *

The question to be determined is whether Article 3266, supra, requires all party plaintiffs to object to the award in order to perfect an appeal or whether the timely filing of objections to the award, joined in by only one of the plaintiffs, is sufficient to perfect an appeal. The question appears to be one of first impression.

In approaching the problem, we think the legal relationship which existed between the plaintiffs at the time this proceeding was filed is of some significance. In order to properly understand that relationship and the reason for both the State and City being made party plaintiffs, a review of the statutes relating to the acquisition of land for State Highway purposes will be helpful.

Artice 6673-b, V.A.C.S., provides that:

“The State Highway Commission is hereby authorized and empowered, in its discretion, to enter into contracts or agreements with the governing bodies of incorporated cities, towns, and villages, whether incorporated under the home rule provisions of the Constitution, Special Charter, or under the General Laws, providing for the location, relocation, construction, reconstruction, maintenance, control, supervision, and regulation of designated State highways within or through the corporate limits of such incorporated cities, towns, and villages, and determining and fixing the respective liabilities or responsibilities of the parties resulting therefrom; and such incorporated cities, towns, and villages are hereby authorized and empowered, through the governing bodies of such cities, towns, and villages to enter into such contracts or agreements with the State Highway Commission. Added Acts 1939, 46th Leg., p. 581, § 1.”

Article 6673e-l, V.A.C.S., provides that:

“In the acquisition of all rights of way authorized and requested by the Texas Highway Department, in cooperation with local officials, for all highways designated by the State Highway Commission as United States or State Highways, the Texas Highway Department is authorized and directed to pay to the counties and cities not less than fifty per cent (50%) of the value as determined by the Texas Highway Department of such requested right of way, or the net cost thereof, whichever is the lesser amount; provided, that if condemnation is necessary, the participation by the Texas Highway Department shall be based on the final judgment, conditioned that such Department has been notified in writing prior to the filing of such suit and prompt notice is also given as to all action taken therein. Such Department shall have the right to become a party at any time for all purposes, including the right of appeal at any stage of the proceedings.
“The various counties and cities are hereby authorized and directed to acquire such right of way for such highways as are requested and authorized by the Texas Highway Department, as provided by existing laws, and in the event condemnation is necessary, the procedure shall be the same as that set out in Title 52, Articles 3264 to 3271, inclusive, Revised Civil Statutes of Texas, and amendments thereto.”

An examination of the allegations in the petition for condemnation shows that the purpose for which the land was to be appropriated was for State Highway purposes, and thus was to be devoted to the use and benefit of all the people of the State. The State was the party who sought title to the land. The City of Palestine was not seeking title nor was the City seeking to appropriate the land for the use and benefit of only the citizens within the City. The State was thus the condemnor. 22 Tex.Jur.2d, Sec. 226, p. 335.

It further appears from the pleading that the City joined the State as a party plaintiff, not as joint condemnor, but only because of its obligation to pay the amount of damages awarded the landowners.

Under the provisions of the foregoing statutes, cities are not only authorized by law to acquire right of way on behalf of the State, but are directed to do so. The statutes also provide that the State shall reimburse the cities for a portion of the cost thereof. Thus, by legislative sanction, cities have a direct financial interest in the outcome of litigation involving condemnation of land within the City to be used for State Highway purposes. For this reason, it appears that the City of Palestine was a proper party to the proceeding as distinguished from a mere formal or nominal party. Rule 40, Texas Rules of Civil Procedure.

As we view the statute granting “either party” the right of an appeal to the courts, we do not believe the Legislature intended to require all party plaintiffs or all party defendants to collectively join in the objections to the award in order to secure a trial in the courts.

The word “either” does not mean “all.” Fort Worth St. Ry. Co. v. Rosedale St. Ry. Co., 68 Tex. 169, 4 S.W. 534. The word “either” is quite frequently used in the sense of “each” or “any.” Black’s Law Dictionary.

Our courts have consistently held that any one of the number of defendants in a condemnation proceeding may file objections and perfect an appeal from the award without the joinder of other defendants. 22 Tex.Jur.2d, Sec. 271, p. 385; citing cases; see also, City of Houston v. Huber, (Tex.Civ.App.) 311 S.W.2d 488. Thus, when applied to the defendants in condemnation, the phrase “either party” is not applied in a collective sense, and consequently, we see no valid reason why the phrase should apply in a collective sense to all party plaintiffs. It was evidently the design of the Legislature to secure any interested party the right of a trial in the courts. Therefore, we believe that the phrase “either party” was intended to mean “any” party. To give the statute the construction contended for by defendants would mean that in any case where the parties on either side of the controversy were unable to agree on the reasonableness of the award, the award would necessarily become the final judgment, because neither of the party plaintiffs nor party defendants would be able to perfect an appeal unless they all, collectively, joined in the objections. Such construction would be contrary to the decided cases holding that any interested defendant may perfect an appeal. Moreover, such construction would not achieve justice in that no aggrieved party, whether plaintiff or defendant, would ever be able to have his rights adjudicated by the courts unless he was able to obtain the consent of all other parties on his side of the docket.

It is our conclusion that the objections filed by the City were sufficient to confer jurisdiction upon the County Court of Anderson County and the court having acquired jurisdiction, the trial judge was not authorized to summarily dismiss the objections and thereby deny the City of its right of a trial as in other civil cases.

For the reasons stated, the action of the trial court in dismissing the objections and entering judgment upon the award must be reversed and the cause remanded to the County Court of Anderson County, Texas.

Reversed and remanded.