author: CLAYTON, Justice.

text:
    Sedley C. BURDETTE, Appellant, v. Art CULP, Ind. etc., et al., Appellees.
    No. 5846.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 4, 1967.
    Rehearing Denied Feb. 1, 1967.

      Doyle Gaither, El Paso, for appellant.
    Richard E. Neill, Houston, for appellees.
   OPINION

CLAYTON, Justice.

Appellant, plaintiff in the trial court, purchased a mobile home from C. Sam Ray Trailer Sales, Inc., in Houston, Texas, on April 13, 1962. The appellee, Allen-Parker Company, also in Houston, financed the purchase. The mobile home was insured against fire by the Standard Casualty Company of Houston and any loss under the policy was payable to Burdette as insured, and Mossier Acceptahce Company and/or assigns, as interest might appear. On or about October 12, 1964 the mobile home was damaged by fire in El Paso, Texas, and proof of loss was in the amount of $2,190.00. At the same time Burdette executed a “Release and Request for Payment of Proceeds” in the amount of $2,190.00 authorizing the insurance company to pay, at its option, said amount to Sun Dial Mobile Home Sales, operated by Cecil Hampsten and Merle Beaty, of El Paso, Texas, who had been authorized to repair the mobile home. The repairs were not satisfactory to Burdette, who, on April 16, 1965, filed suit in the 34th District Court of El Paso County, Texas, being Cause No. 114,152, against the same parties named as appellees in this suit. Citation was served in Cause No. 114,152 on Cecil Hampsten and Merle Beaty, individually and d/b/a Sun Dial Mobile Home Sales, but the named defendants failed to appear and made default. Appellant here, plaintiff in said suit, moved for a non-suit without prejudice as to all other defendants, which was granted on May 11, 1965, and judgment was entered for plaintiff, the court finding that Burdette was in nowise indebted to the defendants Hampsten and Beaty, d/b/a Sun Dial Mobile Home Sales, under the terms of the payment order signed by Burdette, and further found that the named defendants had failed to perform any repairs or other services under the “repair order” as would entitle them to any payments therefor. The court granted Burdette title and possession of the mobile home and ordered issuance of a special writ of execution for recovery of such property by plaintiff, which property was recovered and delivered to Burdette.

On May 12, 1965, Standard Casualty Company issued its check in the amount of $690.00 payable to Sun Dial Mobile Home Sales and Allen-Parker Co. and this check was endorsed and stamped paid on May 17, 1965. On March 4, 1965 Standard had issued another check in the amount of $1,500.00 payable to Sun Dial, which check was endorsed and stamped paid on March 10, 1965. Both checks appear to have been signed by one O. S. Parker for Standard, the man who dealt with appellant regarding his claim for loss.

Appellant then, on June 28, 1965, filed suit in the 120th District Court against the same defendants named in Cause No. 114,152, having added Hampsten and Beaty, d/b/a Sun Dial Mobile Home Sales by amendment, and asking for damages under the insurance contract. After trial before the court without a jury, judgment was entered on March 28, 1966 against plaintiff (appellant) for all defendants. This appeal is taken from that part of the judgment favoring Standard Casualty Company and Cecil Hampsten and Merle Beaty, individually and d/b/a Sun Dial Mobile Home Sales, appellees, against appellant.

Appellant presents fifteen points of error directed at seven of the trial court’s fourteen Findings of Fact, at three of its four Conclusions of Law, and at the court’s refusal to grant any of the five requested additional findings. Points of Error Nos. I, II, VIII, and IX are grouped together in briefing and argument, these points being directed at the ruling in favor of Standard Casualty Company. Appellant’s position is that he was dissatisfied with the repair work done on the trailer and so notified Standard, but it made the payments nevertheless, on the basis of the appellant’s “Release and Request for Payment of Proceeds”, even though appellant had, in effect, revoked such release and request. The testimony of Parker on this point, referring to visits with, or telephone calls from appellant, is as follows:

“Q All right, sir. Now did Mr. Bur-dette tell you when he was in Houston that he was dissatisfied with the trailer?
A He said there were several things that he was displeased with, yes.
Q But he called you long distance prior to that. Didn’t he ask you to see what you could do about stopping work on the trailer?
A He went out, as I understand it, and stopped the work himself.
Q Did he say anything to you about stopping the work?
A He said that he wasn’t satisfied with the work, and I told him that I would — even though I had already agreed to pay for the thing, and it was his and Mr. Hampsten’s work, I would go ahead and see what I could do, I would call Mr. Hamp-sten and see what it was that he was dissatisfied with, I would do everything I could to try to help him out.
Q Now, that was on the first telephone call?
A Well, each telephone call, I told him I would help him at any time, I would try to do everything I could, I would call right over to El Paso and get in touch with Mr. Hamp-sten.”
* * * * * *
“A He called me one time from Houston, called in from another — from the Houston area.
Q Do you recall when that was ?
A Might have been in February, January or February, perhaps.”
⅜ ⅜ ⅝ ⅝ ⅝ ⅜
“Q Now, at any time, have you received a letter or telephone call from Mr. Burdette,- telling you not to pay Cecil Hampsten the $2190.00?
A Never, no sir.”

In our opinion, appellant’s position as to revocation of the release and request is not borne out in the testimony, and we- would have no justification in overruling the trial court’s assessment of this testimony and the weight to be given it, since the trial court was the judge of these matters and his judgment is supported by probative evidence. These points of error are overruled.

Points of Error III, IV, VI, VII and X are grouped in appellant’s brief as pertaining to the court’s ruling of res judicata as a bar to appellant’s cause of action against appellees Hampsten and Beaty, individually and d/b/a Sun Dial Mobile Home Sales.

Keeping in mind that Burdette, appellant here, asked and was granted, as plaintiff in cause No. 114,152 in the 34th District Court, a non-suit without prejudice against all defendants named therein except for Cecil Hampsten and Merle Beaty, individually and d/b/a Sun Dial Mobile Home Sales, the default judgment in said suit must be based solely upon the pleadings and evidence pertaining to said latter-named defendants and the relief prayed for as to such defendants. Examining the former pleadings, we find that essentially the pleadings and prayer therein as to these defendants is expressed in the prayer thus: “that Plaintiff have judgment against CECIL HAMPSTEN and MERLE BEATY, Individually and dba SUN DIAL MOBILE HOME SALES, for possession of said mobile home * * *" This prayer was granted and it was ordered that “a special writ of execution * * *” issue to seize and deliver to said plaintiff such property, which was done. We believe that court to have been without authority to rule: “that the Plaintiff is in nowise indebted to the Defendants CECIL HAMP-STEN and MERLE BEATY, individually and dba SUN DIAL MOBILE HOME SALES under the terms of the repair order [or Release and Request for Payment of Proceeds] signed by Plaintiff as set forth in his petition; and the Court further finds that said Defendants have failed to perform any repairs or other services under said repair order as would entitle said Defendants to any payments therefor.” In view of the circumstances, the last-quoted part of the judgment of the 34th District Court must be considered as sur-plusage and cannot be considered as res judicata in these present proceedings. We therefore sustain that part of appellant’s Point of Error No. VII complaining of that part of the trial court’s Finding of Fact 14, which recited: “ * * * and that the Plaintiff obtained a default judgment against the Defendants, Cecil Hampsten and Merle Beaty, Individually and d/b/a Sun Dial Mobile Home Sales, for the same cause of action as set out in the case at bar * * * ” ; and Point of Error No. X, complaining of Conclusion of Law No. 3, reading:

“The trial court erred in its conclusion of law numbered 3 in that ‘The prior judgment obtained by the Plaintiff against the Defendants, Cecil Hampsten and Merle Beaty, Individually and d/b/a Sun Dial Mobile Homes, operates as a bar to this cause of action against the same Defendants’ for the reason that such conclusion is not an accurate statement of the law and ignores the fact that in Cause No. 114,152 filed April 16, 1965 Appellant prayed for and sought possession of Appellant’s mobile home as against Defendant Hampsten, et al and did not assert a cause of action for monetary damages (Plaintiff’s Exhibit 6) and in fact the judgment rendered in said cause on May 11, 1965, was prior to the issuance of final payment by Standard Casualty Company (Plaintiff’s Exhibits 7 and 8).”

But these conclusions do not affect our final disposition of this cause. We overrule Points III, IV and VI asserting that there is no evidence to support the present trial court’s findings that “ * * * ‘Sun Dial Mobile Home Sales repaired the mobile home of the Plaintiff and that the consideration of $2,190.00 was paid to Sun Dial Mobile Home Sales by Standard Casualty Company’ * * * ”; “ * * * ‘the mobile home of the Plaintiff was repaired by Sun Dial Mobile Home Sales but a dispute arose between the Plaintiff and Sun Dial Mobile Home Sales as to whether the repairs were satisfactory’ * * * ”; “ * * * ‘the Plaintiff offered no evidence of fraud, mistake, duress or failure of consideration or any other grounds to cancel the release, and I find that the execution of the Proof of Loss, Release and request to pay to Sun Dial Mobile Homes was arrived at openly and fairly by the parties thereto’ * * * ”, and further asserting that such findings are against the greater weight and preponderance of the evidence.

We are here expressing no conflict with the previous holding of this court, upon which appellant says he relies, in the case of Cornell v. Cornell, 402 S.W.2d 571, 573 (Tex.Civ.App., 1966; wr. granted), appellant asserting as follows:

“ * * * wherein this Court quoted with approval 34 Tex.Jur.2d 546, § 492, ‘ “It is established that in order for a judgment in one suit to bar the bringing of a subsequent one, there must be identity in the thing sued for; identity of the cause of action; identity of persons and parties to the action; and identity of quality in the persons or parties, citing Philipowski v. Spencer, 63 Tex. 604 (S.Ct.) and numerous other cases.” ’ In the Philipowski case the Supreme Court stated, ‘A former judgment will not be a bar to further litigation, unless the same vital point was put directly in issue and determined, or was fairly within the scope of the pleadings,’ 6 Wait’s Act. & Def., 785, and cases there cited.”

Appellant then follows with the statement: “Certainly alleged payment of a claim by the insurance company subsequent to a final judgment could by no stretch of the imagination be litigated before such payment was made.” With this statement we have no quarrel, but it does not change our opinion here, under the particular circumstances of this case.

Appellant’s Point V charges error on the part of the present trial court in its Finding of Fact No. 12: “I find that the Plaintiff did not notify Standard Casualty Company or Allen Parker Company or anj>- of the Defendants that the $2,190.00 should not be paid to the Defendants, Cecil Hampston and Merle Beaty, d/b/a Sun Dial Mobile Homes.” An examination of the entire record fails to support appellant’s claim that this finding is supported by no evidence, and is against the greater weight and preponderance of the evidence. At the risk of burdening this opinion, we will indicate some of the testimony at the trial on this point. Appellant spoke of a Mr. Stahl, who had adjusted a previous claim of appellant’s, who was quoted by appellant as having said: “He said we were supposed to be satisfied reasonably, and that no payment of any kind would be made to anyone for inferior work.” Asked if this transpired in the offices of the Standard Insurance Company, he replied:

“A It was in an office building other than Allen Parker, [an employee of Standard] Mr. Parker was at Allen Parker’s office, I don’t remember the address of this office that Mr. Stahl was, but it was in another part of town.”

Mr. Parker, Standard’s agent, testified:

“Q Now, at any time, have you received a letter or telephone call from Mr. Burdette, telling you not to pay Cecil Hampsten the $2190.00?
A Never, no sir.”

Appellant himself testified:

“Q Now, did you at any time ever write the Standard Casualty Insurance Company and tell them not to pay Cecil Hampsten for the work he had done; did you ever write one single letter, Mr. Burdette, not to pay him?
A Not that I know of. Not that I remember of.”
“Q You didn’t at any time tell them ^ [Standard] not to pay Hampsten?
A No.”

Appellant’s Point No. V is overruled. All other points are not briefed or argued, and are overruled.

The result of our findings is that the judgment of the present trial court must be affirmed, and it is so affirmed.


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    George H. YIANITSAS, Appellant, v. MERCANTILE NATIONAL BANK AT DALLAS et al., Appellees.
    No. 16843.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 20, 1967.

      Richard S. Geiger, of Spafford, Freedman, Hamlin, Gay & Whitham, Dallas, for appellant.
    Timothy E. Kelley and Norman R. Rogers, of Thompson, Knight, Simmons & Bullion, Dallas, for Mercantile Nat. Bank.
    Ronald L. Neill and Robert G. McCain, of Carrington, Johnson & Stephens, Dallas, for H. B. and B. C. Hilton.
   BATEMAN, Justice.

A summary judgment was rendered that the appellant George H. Yianitsas take nothing by his suit against the appellees Mercantile National Bank at Dallas and Mrs. Hassie B. Hilton for damages arising from his arrest, detention and prosecution for passing certain stolen traveler’s checks.

In moving for summary judgment the appellees assumed the burden of showing that there was no genuine issue as to any material fact and that they were entitled to judgment as a matter of law. Rule 166-A, Texas Rules of Civil Procedure. In determining whether they have carried that burden we must disregard all conflicts in the evidence and view the evidence in the light most favorable to appellant, accepting as true all evidence which tends to support his position and resolving all doubts as to the existence of a genuine issue of material fact against appellees. If the motion involves the credibility of affiants or deponents, or the weight of their statements, or a mere ground of inference, the motion must be held to have been erroneously granted. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., Tex.Sup.1965, 391 S.W.2d 41, 47.

With these precepts in mind, we have examined the affidavits and depositions presented in support of and in opposition to the motion, and find certain undisputed facts which we consider controlling.

Several traveler’s checks, issued byThom-as Cook & Son, disappeared from the offices of Fred L. Haskett Travel Service. Some of them were cashed at the appellee Mercantile National Bank at Dallas, the appellee Mrs. Hilton being the bank’s teller who handled the transaction. The police officer investigating the matter questioned Mrs. Hilton at the bank. She described the man for whom she cashed the checks as being “a short fellow, black-headed, dark-complected, and he looked like a foreigner,” adding that he wore a dark suit and “was just real nice and had a wonderful personality.” She also described him as being shorter than she was and as having black hair, although appellant was in fact two inches taller than she and had predominantly gray hair. She pointed him out as one of a group in a newspaper photograph. Appellant was the one so identified. She also identified appellant as the man when he was brought in to the bank and again at the examining trial in the justice court. No one else so identified him. She also told the police officer, and testified at the examining trial, that the checks had the name “George Yianitsas” in the upper left corner and that the man signed that name on the checks when he presented them at her teller’s window. However, the checks actually bore the name “Robert L. Bacigalipo” and were signed in that name by the man for whom they were cashed. Appellant was charged with theft of the checks but no-billed by the grand jury. He sustained damages in an undetermined amount. Neither of the appellees bore any malice toward appellant or had any reason for doing so. Neither of the appellees made any complaint against appellant or charged him with any wrongdoing. Mrs. Hilton did not volunteer as a witness at either the examining trial or the grand jury hearing, but appeared each time in response to a subpoena.

Appellant’s three points of error on appeal all assert error in rendering summary judgment because there were genuine issues of material facts, viz., (1) as to whether appellees caused the criminal prosecution, (2) whether there was probable cause therefor, and (3) whether they were actuated by malice in doing so.

Since there was no evidence whatever that either Mrs. Hilton or any other employee or officer of the bank accused appellant of stealing or forging the checks, or passing or attempting to pass stolen or forged checks, we need not concern ourselves with his allegations of slander but will consider the case as one for malicious prosecution.

As stated in Flowers v. Central Power & Light Co., Tex.Civ.App., 314 S.W.2d 373, 375, wr. ref. n. r. e. :

“The elements necessary for a malicious prosecution action are: 1) The commencement of a criminal prosecution against plaintiff, 2) which has been caused by the defendant or through defendant’s aid or cooperation, 3) which terminated in favor of the plaintiff; 4) that plaintiff was innocent; 5) that there was no probable cause for such proceeding; 6) that it was done with malice, 7) and resulted in damages to the plaintiff.”

Giving appellant the benefit of every doubt and indulging every legitimate inference in his favor, we find from the undisputed evidence that at least the first and sixth of the foregoing elements are absent in this case.

Appellant argues that, though neither of the appellees actually instituted the prosecution, or voluntarily procured it to be done, there was evidence that Mrs. Hilton’s incorrect identification of appellant constituted such “aid or cooperation” as to put appellees under the same responsibility as if they had commenced the prosecution. He relies on Meyer v. Viereck, Tex.Civ.App., 286 S.W. 894, wr. dism., Davis v. Teague, Tex.Civ.App., 256 S.W. 957, wr. dism., and Reed v. Lindley, Tex.Civ.App., 240 S.W. 348, no wr. hist. However, we see little if any similarity between the facts of those cases and the case at bar.

In Meyer v. Viereck the defendant’s statement leading to the prosecution for murder was voluntarily made to a state ranger and was wholly fabricated. In Davis v. Teague the statement resulting in the prosecution was false and fraudulently made; and in Reed v. Lindley the defendant unquestionably commenced the criminal prosecution.

Here, however, Mrs. Hilton cannot be said to have done so. She did not accuse appellant of committing a crime or doing anything wrong. She did not request or even suggest that he be charged with any criminal offense. She did not even know his name. We are unwilling to hold that her actions, as shown by the undisputed evidence, constituted such “aid or cooperation” as would be tantamount to the commencement of a criminal prosecution. Her actions were altogether in the public interest, and to hold that they made her and her employer liable in damages would be against the public policy of this state as tending to discourage cooperation by the citizenry with its law enforcement officers in the apprehension of criminals and the suppression of crime.

As said by the Supreme Court of Texas in Sebastian v. Cheney, 86 Tex. 497, 25 S.W. 691, 694:

“It is important that every citizen should be protected against malicious prosecutions, and it is equally important that crimes should be punished, in order that the law-abiding citizen may be secure in life, liberty, and property. To make the citizen liable to be mulcted in damages for an honest discharge of duty is to give immunity to crime, and to weaken the restraining power of the criminal law, thereby endangering the security of law-abiding people.”

See also Burgess v. Singer Mfg. Co., Tex.Civ.App., 30 S.W. 1110, no wr. hist.; Daughtry v. Blanket State Bank, Tex.Civ.App., 60 S.W.2d 272, no wr. hist.; Davidson v. First State Bank of Andrews, Tex.Civ.App., 310 S.W.2d 678, no wr. hist.; Moran Utilities Co. v Childs, Tex.Civ.App., 392 S.W.2d 536, wr. ref. n. r. e.; and Ware v. Wright, Tex.Civ.App., 252 S.W.2d 1003.

Moreover, the undisputed evidence in the record before us shows quite clearly that Mrs. Hilton was not actuated by malice or any other “sinister motive” in doing what she did. She had no ill will toward appellant and had no reason to have. She did not even know him and, so far as she knew, had never seen him before. Appellant argues that the jury should be allowed to infer malice from the mere fact that she was mistaken in her identification of him. We do not agree with appellant. If she was in error in making the identification it was obviously an innocent mistake and wholly insufficient to warrant an inference of malice.

The only ground of liability asserted against the Bank is under the doctrine of respondeat superior. Since we have held that it appears from the undisputed evidence that the employee Mrs. Hilton was not liable to appellant, it naturally follows that her employer could not be held liable under that doctrine. Even if Mrs. Hilton had actually commenced the criminal prosecution without probable cause and was actuated wholly by malice, there would still be no liability on her employer because such action on her part was neither authorized, participated in nor ratified by it. Genovese v. Butt, Tex.Com.App., 48 S.W.2d 587; Bennett v. Heath Furniture Co., Tex.Civ.App., 390 S.W.2d 505, no wr. hist.; Equitable Life Assurance Society v. Lester, Tex.Civ.App., 110 S.W. 499, no. wr. hist.

As will be seen from the above, it is our opinion that there is no merit in any of appellant’s points of error. They are accordingly overruled.

The judgment appealed from is

Affirmed.


author: COLLINGS, Justice.

text:
    ANGELINA CASUALTY COMPANY, Appellant, v. Dale Blanton RUSSELL, Appellee.
    No. 4144.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 13, 1967.
    Rehearing Denied Feb. 3, 1967.

      Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellant.
    R. W. Fairchild, Nacogdoches, for ap-pellee.
   COLLINGS, Justice.

Dale Blanton Russell brought suit against Angelina Casualty Company to recover benefits under the Workmen’s Compensation Act. The trial was before a jury which found plaintiff entitled to compensation benefits in a lump sum and $381.00 for necessary medical expenses. Based upon the verdict, judgment was rendered against the defendant. Angelina Casualty Company has appealed.

Appellant’s first three points complain of the action of the court in permitting appellee’s wife, Mrs. Russell, to stand before the jury and display the deformity of her lower limbs over appellant’s objection, and in overruling appellant’s motion for a new trial because of alleged prejudicial and inflammatory argument to the jury by appellee’s attorney in connection with such deformity. Appellant’s objection to the display to the jury was in substance as follows:

We object to any further questioning along this line. It is evident that this didn’t occur at the paper mill and no suit has been brought for it. The only issue upon which it could be material would be the question of lump sum and we think the fact that she has had an operation and is unable to work should be sufficient without trying to influence the jury by any demonstration in the court room.

In our opinion no reversible error is shown. The condition of Mrs. Russell’s leg and foot had been testified to by Mr. Russell without objection. Mrs. Russell also took the witness stand and testified concerning the condition of her foot and leg and which were observed by the jury. It does not appear that there was anything about Mrs. Russell’s appearance as shown by the exhibition or demonstration complained of other than what was described by the unobjected to testimony of Mr. and Mrs. Russell. Appellant’s first point is overruled.

In his closing argument appellee’s counsel made the following statement in reference to Mrs. Russell:

“Oh, that hurt them real bad you know, that we mentioned about this deformed woman. He said, Oh, ‘Southland didn’t cause that.’ Well, of course, they didn’t cause it. That came from birth. But it has to do with their financial condition, doesn’t it. She can’t get out and help bring in groceries. It is up to him to do it.”

In his closing argument appellee’s „ counsel also stated:

“Why they even had the audacity to say that I advanced him this money so he wouldn’t have to work. I advanced him so him and that crippled wife and baby could live.”

Appellant’s second and third points complain of the action of the court in overruling its motion for a new trial because of such argument, asserting it was highly prejudicial and inflammatory and that it violated the court’s instructions that the evidence concerning the physical infirmities of appellee’s wife should be limited and confined to the issue of whether the compensation, if any, to which plaintiff might be entitled should be paid in a lump sum. These points are overruled.

The quoted arguments were in legitimate reply to argument made by counsel for appellant. No objection was made at the time. The argument was not of such nature that it was reasonably calculated to cause or probably did cause the rendition of an improper judgment. Rule 434, Tex.Rules of Civil Procedure. Even if the argument should be held to be improper it was not of such a nature that the effect could not have been cured by an instruction by the court not to consider it. Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298 (1956).

Appellee Russell testified that on the 13th day after the explosion in which he was injured he carried an instrument or slip signed by Doctor Thames to the First Aid Office at the paper mill; that he could not recall the exact wording of the writing on the instrument but indicated that the writing was, in effect, a certificate that he had been ill with a laceration of the face but was then able to return to work. He stated that the only “release to work” given him was a green slip dated April 8, 1961, introduced in evidence as plaintiff’s exhibit 33, which he had taken to and thought he had left at the First Aid Office. Doctor Thames testified that all of exhibit 33 including the signature was in his hand writing. Defendant’s exhibit number 1 was a card dated April 11, 1961 with wording thereon identical with the wording in plaintiff’s exhibit number 33. However, the only hand writing on the card was the date noted thereon and the signature of Doctor Thames. Appellee testified that he had never seen defendant’s exhibit 1 at any time before the trial. A nurse at the paper mill identified appellant’s exhibit 1 as a “return pass” dated April 11, 1961 delivered to her in the First Aid Office by appellee on April 10, 1961. In questioning the witnesses concerning these controversial exhibits and the argument of the attorneys to the jury a dispute developed in which each of the attorneys questioned the authenticity of the exhibits introduced by the other.

In appellant’s fourth point it is contended that the court erred in overruling its motion for a new trial because of argument by appellee’s attorney to the jury attacking the honesty and integrity of appellant’s attorneys and in effect accusing them of forging an instrument or of having knowledge of a forged instrument which they introduced into evidence as appellant’s exhibit 1. We have examined the record in connection with the argument complained of and find that it was in legitimate reply to argument made by appellant’s counsel. Corn v. Crosby County Cattle Company, 25 S.W.2d 290 (Tex.Com.App.); Price v. Humble Oil & Refining Company, 152 S.W.2d 804 (Tex.Civ.App.1941, ref. w. m.); Travelers Insurance Company v. Pierce, 358 S.W.2d 947 (Tex.Civ.App., no writ history). Furthermore in our opinion the argument complained of was not reasonably calculated to cause and did not probably cause the rendition of an improper judgment. Rule 434, supra; Aultman v. Dallas Railway and Terminal Company, 152 Tex. 509, 260 S.W.2d 596 (1953). Appellan~t’s fourth point is overruled.

Also in his closing argument counsel for appellee in discussing the testimony of Doctor Beall and particularly in reference to the fact that appellant’s counsel had objected to a portion of his argument as a misquotation of the evidence, stated as follows:

“That is exactly what I am telling you. * * * Dr. Beall did say that Mr. Garrison wrote it up and he had this man here at the expense of Angelina Casualty Company to write it up. But this man here and his wife haven’t got the money to hire that kind of stuff.” (Emphasis ours)

Appellant’s fifth point asserts that the court erred in refusing to grant its motion for a new trial because of the above argument. Appellant made no objection at the time but urges that the argument was prejudicial and inflammatory in that it was an unwarranted comparison of the relative wealth of the parties and emphasized the fact that appellee did not have the money to make a transcript of the testimony as did appellant. Actually the reference to the financial condition of the parties was on its face merely incidental to the dispute between the attorneys concerning the testimony of Doctor Beall. Considerable evidence concerning appellee’s financial condition was already before the jury. The argument in our opinion was not such that it was reasonably calculated to cause or probably did cause the rendition of an improper judgment. No reversible error is shown. Appellant’s fifth point is overruled.

We also overrule appellant’s sixth point in which it is urged that the court erred in failing to grant appellant a new trial because of the cumulative effect of the jury arguments complained of. The record does not present such an accumulation of breaches of the rules of argument as to require a reversal of the judgment. King v. Federal Underwriters Exchange, 144 Tex, 531, 191 S.W.2d 855 (1946).

The judgment is affirmed.


author: TIREY, Justice.

text:
    Everett Bell FEARRINGTON, Jr., Appellant, v. John Allen WRIGHT, Appellee.
    No. 4576.
    Court of Civil Appeals of Texas. Waco.
    Jan. 12, 1967.
    Rehearing Denied Feb. 2, 1967.
    Joe S. Moss, Houston, for appellant.
    Joe S. Maida, Houston, for appellee.
   TIREY, Justice.

This is an adoption case. On March 30, 1966, John Allen Wright, joined by his wife, Mary Josephine Wright (formerly Josephine Wright Fearrington) brought this suit to adopt Michael Anthony Fear-rington, a minor, whom he alleged was born to Mary Josephine Wright, one of the petitioners here, while she was married and living with defendant, Fearrington, and alleged the child was born on the 15th day of June, 1957 in Harris County, Texas. The petition complies fully with the provisions as required in Sec. la of Article 46a, Revised Civil Statutes. The cause was tried without the aid of a jury.

It was stipulated that Mrs. Wright and her former husband, Fearrington, were divorced on August 14, 1958, and that one child was born to them, a boy, age 14 months at the time the divorce was granted, and the court awarded the custody to the mother, and gave the defendant certain visitation rights and provided that the father pay for the support of said minor the sum of $60.00 per month, payable $15.00 per week; that the father quit visiting the child in March or April of 1959; and that he contributed payments to April of 1959, and that he has not made any contribution for the support of the minor since April, 1959. Testimony was also tendered to the effect that after the divorce was granted the mother and child lived with her mother and father until she intermarried with John Wright, the petitioner, in October 1961. Mrs. Wright and her mother testified to the effect that the father had not visited the child since March or April of 1959, and that he “voluntarily has not contributed substantially” to the support of the child since that date. Testimony was further tendered to the effect that visitation rights were never denied to the father. Testimony was also tendered to the effect that the minor had lived with his natural mother consistently since birth, and that petitioner and the natural mother had maintained a home for the minor since their marriage in 1961.

The judgment of adoption entered on the 25th day of May, 1966, recites that the petition was duly verified by the petitioners; that it was filed on March 30, 1966, and that after its filing and docketing the clerk mailed a certified copy of such petition to the Executive Director of the State Department of Public Welfare at Austin, and noted the date of such mailing upon the docket, and that after the filing of the petition the court appointed a time and place for hearing of such petition, and that the hearing date was subsequently changed by agreement of all parties as evidenced by written order filed with the papers in this cause, and that such order was duly recorded and entered of record, and that the facts therein stated were true; that on the same day the court by order, appointed an investigator and caused investigation to be made whether such minor is a proper subject for adoption, and whether the home of petitioners is a suitable home for such child; that the order was duly made and that the recitations and facts stated therein were true; that the investigator appointed duly made the investigation in accordance with the order and made a written report of his investigation, verified by affidavit; that said report was filed with the records of this proceeding, and that the report was submitted to the court prior to said hearing, and that the natural father of said minor, Everett Bell Fearrington, subsequent to the filing of said petition, was served with citation as required by law, and that he made answer to the petition in his behalf by his attorney of record, and that the answer is before the court. The court further found that the natural father of the minor “voluntarily has not contributed substantially to said minor child’s support,” care and welfare commensurate with his financial ability to do so for a period of more than two years, and based on this finding, this court, being the Juvenile Court of Harris County, gave his written consent to said adoption, and a copy of said order is attached thereto, and made a part of this judgment for all purposes. The court further found that the petition for adoption is sufficient under the law; that the minor child is a proper subject for adoption, and that the residence of petitioners is in Harris County, Texas, and that the home of said petitioners is a suitable home for said minor, and that said home and child are suited to each other; that the minor and petitioners are of, the white race, and that the petitioners and the natural father of said minor are attending this hearing and are in person before the court; that such minor has lived for over six months in the home of petitioners in Harris County, Texas, and that the former name of the child was Fearring-ton, and that Mary Josephine Wright is the natural mother of said child, and finds that the evidence submitted is sufficient to effect such adoption, and that it should be granted, and such adoption be effected, and the court decreed accordingly. The order changed the child’s surname, and that hereafter the child shall be known as Michael Anthony Wright. Everett Bell Fearring-ton, Jr., the child’s natural father, excepted to the judgment of the court granting and consenting to the adoption and gave notice of appeal to the Houston Court, and the cause is here on transfer.

Appellant in his first point contends that the Juvenile Court of Harris County, Texas, has no jurisdiction of this proceeding because all issues pertaining to financial contributions to the support of the child were still pending in a prior divorce suit in the 125th Judicial District Court of Harris County. We overrule this contention. The divorce judgment was in all respects a final judgment, and there was no appeal from the order entered, and under the factual situation here the Juvenile Court had jurisdiction under the provisions of Article 46a, Revised Civil Statutes, and the amendments thereto. See also Art. 2338-18, Sec. 7(a) Revised Civil Statutes. See also In re Adoption of Bennie Lee Alls, 278 S.W.2d 524, Amarillo, 1955, n. w. h., points (2, 3). There is no merit in this contention, and it is overruled.

Appellant’s second point is that the court erred in refusing to grant him a jury trial. There is no merit in this contention. The Austin Court, in Hickman v. Smith, 238 S.W.2d 838, 1951, writ ref., in an adoption case, held:

“Article 46a under which this proceeding was brought validly and plainly makes it the duty of the trial court or judge, as distinguished from a jury, to grant or deny a petition for adoption as in his discretion the facts and welfare of the child require.”

Citing Oldfield v. Campbell, Tex.Civ.App., Waco, 191 S.W.2d 897, n. w. h.; Davis v. Collins, 147 Tex. 418, 216 S.W.2d 807, 1949. In points (4, 5) we find this statement:

“The rights and welfare of the children are the paramount things to be considered in adoption and child custody cases.”

See opinion of this court, Faulkner v. Johnson, 383 S.W.2d 873, point 2, n. w. h., 1964. The statement of facts shows that appellant’s lawyer paid a jury fee the day before the trial, and the. court sustained appellee’s objection to it on the ground that it had not been paid ten days prior to the date the case was set for trial according to Rule 216, T.R.C.P. Point two is overruled.

Point 4 is that the court erred in finding as a fact that appellant voluntarily has not contributed to the child’s support, because such finding is against and contrary to the overwhelming weight of the evidence. We overrule this contention. The evidence is ample to sustain the court’s finding that the natural father has not made any payments for the support of the minor since April, 1959. This suit was filed March 30, 1966. Therefore, we are of the view that the finding is amply supported by the evidence since .the natural father “voluntarily” had not contributed substantially to the support of his child since April, 1959, which was two years prior to the filing of this suit, and fully complies with the provisions of the adoption statute.

We have considered each of the other points tendered by appellant’s brief and find that each is without merit, and each is overruled.

Accordingly, the judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Helen V. JASKOLSKI, Appellant, v. Edward A. JAHN, Appellee.
    No. 4569.
    Court of Civil Appeals of Texas. Waco.
    Nov. 10, 1966.
    Levy, Levy, Schwab & Coughlin, Lawrence M. Coughlin, Galveston, for appellant.
    Edward A. Jahnj pro se.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff from a take-nothing judgment in a suit for damages. Plaintiff sued defendant for $233.10 damages caused by defendant’s negligence in running into plaintiff’s parked car. Defendant answered, alleging that prior to suit he paid plaintiff $100 in full satisfaction of the cause of action plaintiff sues on.

Trial before the Court without a jury resulted in judgment that plaintiff take nothing.

The Trial Court filed findings and conclusions as follows:

FINDINGS OF FACT
1) Defendant paid plaintiff $100.
2) The amount of damage to plaintiff’s car was $333.10.
3) Plaintiff testified she does not make any claim for damages against defendant, and does not want a judgment against defendant.
ADDITIONAL FINDINGS OF FACT
1) Defendant’s car struck and damaged plaintiff’s car which was properly parked at the curb.
2) Defendant failed to drive his car in a proper lane of traffic, which was negligence and a proximate cause of the collision.
3) Defendant knew at the time of the $100 payment to plaintiff that plaintiff had a $100 deductible insurance policy.
CONCLUSIONS OF LAW
1) There could be no judgment rendered against defendant under the evidence.
2) The only parties involved in this cause are the plaintiff and the defendant.
Plaintiff appeals, contending the Trial Court erred:
1) In finding as a matter of fact, that plaintiff does not make any claim for damages against defendant and does not want a judgment against defendant.
2) In concluding as a matter of law there could be no judgment against defendant under the evidence.
3) In entering judgment for defendant and in not entering judgment for plaintiff.

The agreed Statement of Facts reflects: Defendant’s car struck plaintiff’s properly parked car, necessitating repairs to plaintiff’s car of $333.10; the repairman was paid such amount, of which $100 was paid by defendant. Plaintiff testified defendant paid her $100, which was the amount of her deductible under her insurance policy; and further “she was out no money”, and “personally had no further claim against defendant” ; and “personally claimed no judgment against defendant”; and that “her insurance company paid the balance of the damages and was pursuing this claim against defendant.” Plaintiff testified she did not execute a release to defendant. Defendant testified he paid plaintiff $100, which she stated was the deductible under her insurance policy; and that plaintiff executed a release in his favor. Plaintiff’s attorney objected to the evidence of release on the basis of hearsay, and that the release was the best evidence. The Court sustained the objection, and no release was offered in evidence, nor any further testimony regarding such release.

Plaintiff filed suit against defendant; defendant was guilty of negligence proximately causing plaintiff’s damages in the amount of $333.10; defendant paid plaintiff $100; plaintiff’s insurance company paid the balance of the damage and the evidence is “was pursuing this claim against defendant.” We think plaintiff entitled to judgment against defendant for $233.10. The fact plaintiff testified she “personally had no further claim against defendant”; and “personally claimed no judgment against defendant”, is immaterial.

It is apparent from the record plaintiff has a cause of action; that plaintiff’s insurance carrier paid the damages less the $100 deductible; and plaintiff still seeks judgment (by this appeal) against defendant.

In such situation the insurance carrier may proceed against defendant in the name of plaintiff. Camden Fire Ins. Ass’n. v. Eckel, Comm.App., 14 S.W.2d 1020; and assignee insurance company is not a necessary party. Hyde v. Marks, CCA, Er. Dis., judgment correct. 138 S.W.2d 619. And where beneficial owner files a suit in the name of assignor, it is not necessary that petition show on its face that it is brought for the benefit of another, if in truth the real beneficial owner instituted the suit in that form. San Antonio & A. P. Ry. v. D. M. Picton & Co., CCA, Er. Ref., 111 S.W.2d 842; Anders v. Newsom, CCA, (n. w. h.), 217 S.W.2d 422; Hudson Underwriters Agency, etc. v. Ablon, CCA, Er. Dis., 203 S.W.2d 584.

The trial court should have entered judgment for plaintiff for $233.10.

Reversed and rendered.


author: WILSON, Justice.

text:
    TEXAS CITY HOTEL CORPORATION, Appellant, v. A. D. WILKENFELD, Appellee.
    No. 4571.
    Court of Civil Appeals of Texas. Waco.
    Dec. 22, 1966.
    Roland Matthews, Texas City, for appellant.
    Crawford, Harris, Martin & Carmona, Ed J. Harris, Galveston, for appellee.
   OPINION

WILSON, Justice.

Texas City Hotel Corporation, appellant, sued appellee on a written installment contract whereby the latter subscribed to shares of its common stock, and for which it was alleged he had failed to pay.

Appellee pleaded failure of consideration, alleging he was induced to enter into the agreement by the representations and agreements of appellant’s agents and promoters that a community-type hotel would be constructed in the business district of Texas City; that appellant abandoned the project and constructed a motel distant from the business district, on Galveston Bay; that it was not a community-type hotel, but was leased to a national Holiday Inn motel chain. Judgment was rendered for appellee on a non-jury trial.

Our consideration of the case is restricted by appellant’s points, which are: that the court erred in overruling its motion for summary judgment; in finding and concluding the motel produced varied sufficiently from the subscription agreement and the prospectus it referred to relieve appellee of liability; and in concluding he was relieved of liability because of violation of Art. 581-1 et seq., Vernon’s Ann.Civ.St.

Where there has been a conventional trial on the merits, as here, the interlocutory order overruling a motion for summary judgment is not reviewable. Ackermann v. Vordenbaum (Tex.Sup.1966) 403 S.W.2d 362, 365.

The trial court made findings of fact to the effect that appellant’s agent, Rogers, acting within the scope of his authority, represented that appellant would build a hotel over two stories high within or adjacent to the business district, affording facilities for merchants and professional offices, and that the hotel would be managed and operated “by personnel subject to local authority”; that these representations induced appellee’s execution of the agreement; that appellant built a two-story motel seven blocks from the central portion of the city, which is operated by another corporation. The court concluded the “variance” between the representations as to what would be done and what was done was so material as to relieve appellee of liability.

As we understand appellant’s second point, it is contended that, as a matter of fact, what appellant produced did not vary materially from what it promised. The findings of fact are supported by the evidence. It is difficult to perceive either the theory on which the case was tried by the parties, or their position on appeal. After extended argument in support of the stated contention, appellant concludes, “To find there was such a variance may be justified by the record.” It then says, apparently, that the variance found is not material.

In our opinion, the subscription was made on what are described as special terms, 1 Hildebrand, Texas Corporations, Sec. 220, p. 480, and there was alleged, proved and found a breach of these material obligations sufficient to authorize rescission by ap-pellee and to relieve him of liability. 1 Hildebrand, Texas Corporations, Sec. 220, pp. 481-486 and authorities cited.

It is unnecessary, consequently, for us to decide appellant’s third point concerning the statutory violation. Affirmed.


text:
    George R. DICKERSON et ux., Appellants, v. BLUEBONNET EXPRESS et al., Appellees.
    No. 4565.
    Court of Civil Appeals of Texas. Waco.
    Jan. 12, 1967.
    Rehearing Denied Feb. 2, 1967.

      John H. Holloway, Houston, for appellants.
    Clawson, Jennings & Clawson, Max H. Jennings, Robert E. Delany (on appeal), Houston, for appellees.
   WILSON, Justice.

Plaintiff’s chief complaint in this automobile rear-end collision case is that the $5,000 damages for her personal injuries and $1,400 for medical and hospital expenses incurred, found by the jury, are so inadequate as to require reversal. Another point attacks the jury’s answer, “none,” to an issue on future medical and hospital expense.

By Rule 328, Texas Rules of Civil Procedure, new trials may be granted “when the damages are manifestly too small”. See Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835, 840.

The damages to be found were restricted by the charge to those proximately caused by defendants’ negligence, and those resulting from the collision. Plaintiff, aged 50, was admitted to a hospital three times after the accident. She had, among other complaints, back, neck and leg pain, and a swollen liver. After a myelogram, surgery was performed to relieve a disc protrusion which caused nerve root pressure. There was evidence of extensive . and prolonged pain. There was opinion evidence to the effect she would have 10-15% permanent disability to perform general activities and household duties, and there was testimony as to special damages. The evidence would have supported a verdict for several times the amount awarded, and plaintiff’s argument that it was inadequate is persuasive.

There is also evidence, notwithstanding, from plaintiff’s medical witness that the laminectomy performed was successful, and satisfactory results were achieved; that plaintiff was thereafter “relatively free from pain”; that the disc protrusion was a.chronic degenerative condition; that “injury might not cause it; injury is not the whole cause. This disc was borderline degeneration”; that there was a narrowing of the disc in the lumbar area: “The trouble with discs which eventually leads to rupture is due to something outside, something wrong with the disc, a weakness, and trauma or injury gets them into trouble. We show this because I don’t think we ever feel they are all solely due to trauma or injury”; that any injury to the cervical area “has probably cleared.up”; that the spinal condition is something which “occurs over the years.”

There was evidence which would support recovery for future medical expense, but there is evidence from which the jury could properly deduce that it would not necessarily be required as a result of the collision. Plaintiff’s doctor testified that as to reasonable medical attention “that is associated with the injury she received in this accident” he thought “she would not need a great deal”; and testified, “I don’t see, with any reasonable luck that she would have a lot of medical care in the future.” He thought she should take vitamins costing about 5jS per day. “Q. Is there any other medication which you feel would be beneficial to her condition? A. No, I don’t think so. I don’t think she will need a lot of medication unless she has more trouble.”

We have carefully reviewed the record, and we overrule these, and appellants’ other points. Affirmed.


text:
    Marian S. ROSEN et vir, Appellants, v. GREATER MOUNT OLIVE BAPTIST CHURCH et al., Appellees.
    No. 4577.
    Court of Civil Appeals of Texas. Waco.
    Dec. 29, 1966.
    Clyde W. Woody, Houston, for appellants.
    James S. Robinson, Marvin Lewis, Dallas, John Peace, and J. B. Langham, San Antonio, for appellees.
   OPINION

WILSON, Justice.

Appellant-plaintiff relies, in this non-jury plea of privilege case, on Subd. 4 of Art. 1995, Vernon’s Ann.Civ.St.

Among the venue facts necessary to be established by plaintiff under this subdivision in order to hold venue in the county of suit against a nonresident’s plea of privilege is that plaintiff has in fact a cause of action against the resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302.

Appellant urges that she pleaded a joint or intimately connected cause of action against resident and nonresident defendants as required to hold venue under the subdivision. The deficiency here is in proof of a cause of action against the resident defendant.

Plaintiff sued for attorney’s fees under a contract with a nonresident to prepare an application to the Federal Housing Administration. It was alleged. this defendant assigned its interest in the project to which the application related to another nonresident defendant; that still another defendant, as mortgagee, transferred its interest in the same project to a resident defendant “along with the benefits and knowledge” of the contract for attorney’s fees with the first nonresident defendant.

Although plaintiff pleaded this resident defendant assignee assumed the liabilities of the latter assignor, there is no evidence the obligations under the contract of employment were assumed, and there is no proof of a direct assumption. It is not necessary for us to pass upon the sufficiency of the pleading to state a cause of action. Appellant points to no other proof than the assignment last mentioned. It is suggested that “it is reasonable to assume” this defendant was instrumental in inducing a breach of appellant’s contract of employment. That assumption which we are requested to indulge in does not constitute evidence, and there is no evidence authorizing us to assume the fact suggested.

The mere acceptance of an assignment by the resident defendant of the mortgagee’s interest in the proj ect did not create a liability against the latter. Potts v. Burkett, Tex.Civ.App., 278 S.W. 471, 473, no writ; 6 Tex.Jur.2d, Assignments, Sec. 43, p. 433 ; 6 Am.Jur.2d, Assignments, Sec. 109, p. 291.

Since there is no cause of action established against the resident defendant, the judgment is affirmed.


author: FRASER, Chief Justice.

text:
    Zacarias ORNELAS, Ind., et al., Appellants, v. MOORE SERVICE BUS LINES and Raymond Zavala, Appellees.
    No. 5807.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 28, 1966.
    Rehearing Denied Feb. 1, 1967.

      Joseph J. Roybal and Heriberto J. Porras, Jr., El Paso, for appellants.
    Kemp, Smith, White, Duncan, & Hammond, William E. Duncan, El Paso, for ap-pellee.
   OPINION

FRASER, Chief Justice.

This is an appeal from a judgment of the District Court of El Paso County, Texas. The case was submitted to the jury against both parties defendant, and the jury returned a verdict in the sum of $48,000.00 against the defendant Raymond Zavala, and no finding of negligence on the part of the defendant Moore Service Bus Lines. This appeal is directed against the jury’s findings in connection with the appellee Moore Service Bus Lines, and the judgment rendered by the court.

The controversy involves a bus injury suit in which appellant Irma Ornelas Sanchez, a minor at the time of the injury, was a passenger in a bus operated by ap-pellee, Moore Service Bus Lines. The said bus was involved in a collision with a station wagon driven by defendant Raymond Zavala. The appellant, Irma Ornelas Sanchez, alleges that she was seriously injured at the time of the collision. The action was filed by appellant Irma Ornelas Sanchez, who was joined by her husband, Gilbert Sanchez, and Zacarías Ornelas, who filed this suit as next friend of Irma Ornelas when she was a minor, and before her marriage.

The case was submitted to the jury against'both defendants.

It appears that this accident happened April 28, 1962, at about five P.M., on Ala-meda Avenue, which is one of the more heavily traveled streets of El Paso. According to a witness, Mrs. Wade, who was driving her passenger car a short distance ahead of the bus, the station wagon, driven by defendant Raymond Zavala, was approaching on the wrong side of the avenue and she, Mrs. Wade, began stopping her car when she saw Zavala’s car crossing the highway. She further stated that she assumed that he, for some reason, was cutting off the highway on the wrong side, but as she watched, she saw him go to the shoulder of the highway to her right, and then back across and straight into the path of the bus at a speed of about 40 to 50 miles per hour. She states that the distance between the collision and the place where she stopped her car was about a block. Her testimony is further illustrated in defendant Moore Service Bus Lines Exhibit No. 6. The red line thereon, which is almost a half-moon, shows the path of the Zavala car as it came down on the wrong side of Ala-meda Avenue. At the time of the accident there were two yellow lines down the middle of the avenue, and Zavala is first noticed as he was approaching from the west to the east on the inside lane, which is the lane next to the yellow stripes on the northerly half of the street which, of course, was on the wrong side of the avenue for him while traveling in the direction he was going. As Mrs. Wade’s testimony indicates, the line shows Zavala made an abrupt left turn, going farther across the wrong side of Ala-meda and clear out and onto the shoulder. Then he turned back to his right and across the outer lane of Alameda and struck the bus head-on in the inside lane of the northerly part of Alameda Avenue. Mrs. Wade said she saw the entire occurrence and, as stated, when she first saw Zavala cutting across the street in front of her, assumed that he was going across and off the highway to some destination on that side; but as she watched, he reversed his direction, came back on to the highway, and struck the bus. It is obvious from her testimony and the exhibits that during this entire time Zavala was never on the right side of the street, as will appear from Exhibit 6. Another witness, Chavez, who was a passenger in the bus, described the accident just about as Mrs. Wade told it, and he further stated that the Zavala car was going very fast. The passenger in Zavala’s car was killed, and Zavala was unable to remember anything except that he had been to a drinking party the night before, had returned to his work at around four o’clock in the morning; then, several hours later, went to Zaragosa, Mexico to drink some beer. He claims not to have remembered anything.

The driver of the appellee’s bus testified that he had been on the outside, or northern-most lane of Alameda Avenue, but, as he approached the intersection of Carolina and Alameda, he looked in the mirror and began turning into the inner lane, which would be the lane nearest the double stripe, so that when he arrived at the intersection he could make a left turn into the Cedar Grove area. He says that he looked in his rear mirror and had made his change of lanes, when he saw Zavala approaching. He stated, also, that Zavala was driving his car at about 40 to SO miles per hour; that he, the bus driver, applied his brakes slowly, but could not make any safe turn to avoid the collision and was unable to do anything other than he did, and that he didn’t have time to warn the passengers. His testimony indicates that the entire accident happened so fast, and the right turn of the Zavala car was so sudden and unexpected, that he was unable to take any effective preventive measures with the bus he was driving. The picture or photographs taken show that the Zavala car drove headlong into the bus, and it is in evidence that the driver of the bus had to be removed by the use of a blowtorch.

Plaintiff bases her claim on the assertion that the bus driver did not warn her in time for her to take hold of anything; that she was injured by being suddenly propelled forward into and against the coin box, and that such propulsion of her body was caused by the bus driver applying his brakes suddenly and improperly.

The jury found that the driver of the bus did not fail to timely apply his brakes and did not fail to exercise proper care in warning appellant of the impending collision, and that the bus driver was acting under an emergency immediately prior to the collision. The jury, after acquitting the bus driver of any negligence, found defendant Zavala, the driver of the station wagon, guilty of driving on the wrong side of the street and that such was negligence and a proximate cause of the accident; that he operated his automobile at a rate of speed in excess of ordinary prudence and care under the circumstances there present, and that such was a proximate cause of the collision; and lastly, the jury found that reasonable compensation for plaintiff and her father would be $48,000.00.

Appellants maintain that the District Court was in error in refusing to grant a judgment N.O.V. with respect to Special Issues 3 and 4, which relate to appellants’ claim that the driver of the bus failed to properly warn Irma Ornelas Sanchez of the impending collision; also, that the District Court committed error in not granting appellants’ motion to set aside the verdict on Special Issues 1 and 2, which relate to the finding by the jury that the driver did not timely fail to apply his brakes at the time of the collision; also, that the court erred in not granting a directed verdict as to Special Issue 5, which issue was answered by the jury to the effect that immediately prior to the collision the bus driver was acting under an emergency.

We believe that these matters which are brought up by appellants’ first three points of error do not reflect error on the part of the trial court. The statement by appellant, that there was no evidence contrary to her position that her injuries resulted from the negligent failure of the bus driver to timely warn her and to timely apply his brakes, cannot be sustained. The bus driver himself testified that he had no time to warn anyone, and that he was applying his brakes carefully at the time of the collision. Plaintiff Irma states that she had just boarded the bus and was reading a Spanish magazine called “Confidencias” and doesn’t remember anything until she regained consciousness in the hospital. We do not find any allegation in the appellants’ briefs that anyone testified that the bus driver failed to timely apply his brakes. This matter is handled in the briefs on the ground that this was the only inference that could be drawn. However, the jury did not so find. With regard to the finding of the jury that the bus driver found himself in a sudden emergency, we believe this finding is amply supported by the testimony of the witnesses Wade, Chavez and the bus driver. Therefore, plaintiff has had to rest her case on the inference that the bus driver negligently failed to timely apply his brakes and negligently failed to timely warn the passengérs of the impending collision. We believe the evidence was sufficient to support the answers of the jury to the issues relating to these matters, and it must be noted here that the issues contained an adequate description of the duties imposed upon a driver, such as the bus driver here. There is no question but what appellant Irma was badly injured, but we do not find error in the submission to, and the findings of, the jury relating to the bus driver’s activities, especially when the jury found that he was acting under a sudden emergency. There is actually no testimony of faulty application of brakes by the bus driver. We believe, therefore, that appellants’ Points 1, 2 and 3 must be overruled.

Appellants’ Point 4 charges the trial court with error in refusing to submit a proper definition of a common carrier, and requested issues thereon. We find no error in this point, as the court included in the issues submitted the wording, “as would have been made by a very competent, prudent and cautious person engaged in the carrying of passengers for hire, under the same or similar circumstances”. These were negligence issues, and a separate definition would have been repetitious and unnecessary, as the issue itself properly set the standard. We find no error in this point, and it is accordingly overruled.

Appellants’ fifth and sixth points maintain that the trial court should have reversed the judgment and granted a motion for mistrial because of misconduct of the jury. We have examined the evidence with regard to this matter and do not believe there is merit in these two points. The record shows that the trial court gave all parties a full hearing and opportunity to present their proof. The argument centers around one juror, Nicholas, who, it is alleged, “bragged” about being a jet pilot and who was alleged to have had something in his hand with which he was calculating speeds and distances; but there is much sharp conflict between the jurors themselves. Some say they did not pay any attention to him, others stated they didn’t know what he was talking about and that his remarks were getting “monotonous”. Some jurors said the foreman warned them and some said they told Nicholas that he shouldn’t consider anything except that which was in evidence. Taken at its best, it is obvious that the juror Nicholas did not attempt to bring any new evidence into the jury room. He apparently only was making calculations based on evidence such as speed, seconds and elapsed time, which had been presented in the trial of the case. There is no contention that the juror Nicholas used any speed or distance not shown in the evidence. Of course it is elementary that jurors may draw on common knowledge and experience, and that seems to be the situation here. We do not find adequate proof of what Nicholas had in his hand, or that whatever conclusions he was purported to have announced, were outside of natural inferences and common experience. Of course the burden of proof is always on the party asserting misconduct, and he must prove not only that the misconduct occurred, but that it resulted in probable injury to a party and caused a materially unfair verdict or judgment. Tudor v. Tudor, Tex.Civ.App., 311 S.W.2d 733; 158 Tex. 559, 314 S.W.2d 793 (1958); Texas Employers’ Ins. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958); Davis v. Damge, 328 S.W.2d 203 (Houston Civ.App. 1959; re., n. r. e.). Where the evidence on jury misconduct is conflicting, the trial court has the duty and the right to resolve any inconsistencies, and if such ruling is supported by evidence, it is binding on the reviewing court. State v. O’Dowd, 158 Tex. 348, 312 S.W.2d 217 (1958); Dallas Transit Company v. Collier, 317 S.W.2d 557 (Civ.App., n. w. h.). These two points, therefore are overruled.

Appellants’ Point 7 charges the trial court with error in refusing to submit plaintiffs’ requested Issues 1, 2, 3 and 4. We have examined these issues and find no error in the action of the court. Issues 1 and 2 are erroneously worded in that they assume improper action on the part of the bus driver, and Issues 3 and 4 are not necessary and are erroneous because they concern issues that were not contested — namely, whether appellant Irma was thrown forward and injured, and whether it was her own fault; and No. 4 is erroneous in that it is too vague and asks for a general finding. All of these requested issues were included in a “Suggested Court Charge” which included, also, the definition of the degree of care owed.by a common carrier. This point is therefore overruled.

Appellants’ Points 8 and 9 also relate to matters contained in the “Suggested Court Charge”. These two points assert that the trial court should have submitted issues on discovered peril and last clear chance; but examination of the requested issues themselves indicates that they were erroneous and that neither discovered peril nor last clear chance was raised by the evidence. These two points must also be overruled.

Appellant’s tenth and last point claims the court committed error in refusing to admit Texas Driver’s Manual into evidence in connection with the requested special issues, including last clear chance and discovered peril. We find no error here, as the Manual was not offered in evidence, nor was it proffered as predicate for complaint on appeal. This point must therefore also be overruled.

Summing up, we find a driver of a large passenger-carrying bus moving from his outside to his inside lane of a four-lane avenue and discovering, as he enters the inside lane, a station wagon coming toward him on the wrong side of the street, then veering off clear across the rest of the street to the shoulder and then swerving back into and on to the avenue, and hitting the Moore Company bus head-on. The diagram and exhibits show these facts, and that the collision was apparently straight head-on and not sidewise. Appellant has tried to recover on the ground that the driver of the bus was not acting under an emergency and did not timely warn her or any passengers of the impending collision and did not timely apply his brakes. It must be noted here, with regard to the matter of warning appellant Irma Ornelas Sanchez, that, by her own testimony, she was reading a magazine; and therefore it is obvious that the bus driver would first have had to have seen the impending collision or peril in time to give a warning to his passengers, and then, added to his reaction time, would be added the reaction time of the girl, who was absorbed in reading a magazine. She would have had to understand and act immediately on any warning given by the driver, and it is not in the evidence that she could have done so in time to have prevented injury to herself. She bases her case on inferences, rather than facts. At least two witnesses testified that the station wagon was traveling between 40 and 50 miles per hour, and it is hard to determine, other than by speculation, that the bus driver should have or could have guessed that this erratic driver would suddenly swerve from the outside shoulder and come rushing across the avenue and hit the bus head-on. There was a lot of testimony in this case, but it is not clear anywhere what the bus driver could have done to have prevented the injury to the plaintiff under the conditions and the emergency existing at the time.

Appellants’ points are therefore overruled, and the decision of the trial court affirmed.


text:
    Samuel CHAFFINO et ux., Appellants, v. Herman HATTER, Jr., et al., Appellees.
    No. 4562.
    Court of Civil Appeals of Texas. Waco.
    Jan. 12, 1967.

      Conway L. Wallace, Banister, Boswell & O’Toole, Roy Alexander, Jr., Houston, for appellants.
    Thomas J. Ryan, Houston, for appellees.
   OPINION

WILSON, Justice.

Plaintiff appeals from a take-nothing judgment on a jury verdict in a rear-end automobile collision case. His brief describes the collision as follows: He and his wife were proceeding toward their home. Immediately after crossing an intersecting street plaintiff turned on his left-turn signal light, and reduced the speed of his vehicle to a bare minimum in contemplation of turning into his driveway, which was at the third house in that block. He heard tires squealing behind him, looked into his rear-view mirror, saw that defendant’s vehicle was upon him, brought his car to a stop on the right side of the street, and was struck in the rear by defendant’s car.

The jury found negligence of defendant’s driver was a proximate cause of the collision, but also found plaintiff’s negligence in failing to drive his vehicle to his right, and in stopping suddenly was a proximate cause.

Plaintiff says a negative answer to an issue inquiring whether he failed to give a visible signal of his intention to stop conflicts with the finding that he stopped suddenly. To present a conflict findings must concern the same subject matter. These do not. One inquires as to a stop; the other as to a signal. There is no conflict.

Objections that two issues are comments on the weight of the evidence are not preserved as grounds in the motion for new trial, and may not be considered.

The remainder of the points are those asserting no evidence, insufficient evidence, and overwhelming preponderance of the evidence. They are overruled.

Affirmed.


author: SHARPE, Justice.

text:
    W. R. MONTGOMERY, Appellant, v. Charles Edgar RITTERSBACHER et al., Appellees.
    No. 242.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 29, 1966.
    Rehearing Denied Feb. 16, 1967.

      L. C. McLean, of Kelley, Looney, McLean & Littleton, Edinburg, for appellant.
    B. R. Stewart, of Aldrich, McDonald & Stewart, Edinburg, for appellees.
   OPINION

SHARPE, Justice.

Appellant, plaintiff below, appeals from a take-nothing judgment rendered in a non-jury trial.

Plaintiff, the owner of a non-participating royalty interest, sued to establish his right to accumulated royalty and royalties to accrue subsequently under an oil, gas and mineral lease. His claim was denied. Findings of fact and conclusions of law were not requested nor filed.

The material facts are not in dispute. In 1945 plaintiff conveyed to defendants’ predecessors in title lots 7 and 8 of the A. J. Mc-Coll Subdivision in Porcion 68, Hidalgo County, Texas, comprising 80 acres, hereinafter sometimes referred to as “first tract”. The deed contained the following reservation:

“Out of the grant hereby made there is, however, excepted and reserved unto the Grantor herein, his heirs and assigns, forever, the equal one-half part of the usual royalty of one-eighth of all the oil, gas and other minerals on, in and under the premises hereby conveyed, such one-half part to be paid and delivered under and by the terms of the present or any future oil, gas and mineral lease or leases outstanding on said premises. But Grantor, his heirs and assigns shall not participate in, and no reservation is here made of the lease or annual rentals and/or bonus money received by Grantee, his heirs and assigns for any future lease or leases given on said premises, and it is understood and agreed that it shall not be necessary for said Grantor, his heirs and assigns to join in any such lease or leases so made.”

On September 4, 1951, after defendants acquired first tract they executed an oil, gas and mineral lease covering it and three other lots containing an additional 124.19 acres (Lot 6 of the McColl Subdivision and two lots in the Kelley-Pharr Subdivision, Porciones 69 and 70, Hidalgo County, Texas), hereinafter sometimes referred to as “second tract,” Plaintiff did not own royalty in the second tract. Thereafter the second tract was placed in a designated unit on which production was obtained from lands other than those owned by defendants. First tract was not placed in that unit but was farmed out by Sun Oil Company, the lessee, and was unitized by designation filed June 2, 1961. The latter unit did not produce and was abandoned. Plaintiff did not join in the lease executed by defendants.

The entirety clause included in the lease of September 4, 1951 reads as follows:

“If the leased premises are now or shall hereafter be owned in severalty or in separate tracts, the premises, nevertheless, shall be developed and operated as one lease, and all royalties accruing hereunder shall be treated as an entirety and shall be divided among and paid to such separate owners in the proportion that the acreage owned by each such separate owner bears to the entire leased acreage.”

Although appellant urges five points of error and appellees three reply points, the principal question presented is whether the owner of a non-participating royalty interest in 80 acres of land (first tract) which is leased by the subsequent holders of the executive rights along with other lands belonging to them (second tract), the latter but not the former being placed in a unit, can recover royalties on production from the unitized area on the basis of the proportion that the acreage owned by the separate owners in first tract and second tract bears to the entire leased acreage because of the entirety clause contained in the lease.

Plaintiff, in substance, contends that the trial court erred in denying him the relief sought because (1) under the express terms of the lease executed by defendants the interest of plaintiff was included in the lease between defendants and Sun Oil Company, resulting in plaintiff being entitled to receive his proportionate share of the royalties, (2) defendants, the holders of the executive rights on first tract, elected to execute a community lease which included the interest of plaintiff and defendants cannot now deny the effect of it, (3) defendants, under the terms of the conveyance and royalty reservation made by plaintiff, as a matter of law contracted that the royalty revenues be treated as an entirety to be divided among and paid to the separate royalty owners in the proportion that the acreage owned by each bears to the entire leased acreage, (4) plaintiff agreed to ratify the existing lease executed by defendants, (5) plaintiff and Sun Oil Company entered into a lease containing a provision that if the leased premises are now or should hereafter be owned in severalty or in separate tracts, the premises nevertheless shall be developed and operated as one lease and all royalties accruing thereunder shall be treated as an entirety and shall be divided among and paid to the several owners in the proportion owned by each such separate owner bears to the entire leased acreage and plaintiff being a royalty owner in the first tract is a third party beneficiary to such contract and is entitled to enforce his legal rights by a suit, if necessary. Plaintiff’s position is that he not only is entitled to receive royalties from production on the unitized tract, but, also, in the event production should be had from the land on which his royalty is owned he would be entitled to receive his full share of reserved royalty, as above-mentioned.

Defendants, by their reply points, say that the trial court correctly held that plaintiff as a non-participating royalty owner on land not included in a gas unit was not entitled to share in royalties paid on lands included in the unit; that the entirety clause of the lease does not apply to a prior non-participating royalty owner; that the holder of the mineral leasing rights cannot pool or unitize the rights of the nonparticipating royalty owner; and that the trial court properly denied appellant the relief sought because there had been no actual ratification of the lease by plaintiff, even though he says he agreed to ratify.

We agree with defendants.

The briefs herein call attention to two decisions by the Supreme Court of Texas involving entirety clauses. Plaintiff cites the case of Thomas Gilcrease Foundation v. Stanolind Oil & Gas Co., 153 Tex. 197, 266 S.W.2d 850 (1954), and defendant cites Cockrell v. Texas Gulf Sulphur Company, 157 Tex. 10, 299 S.W.2d 672 (1957), and particularly the concurring opinion of Judge Calvert, 299 S.W.2d 684.

In Gilcrease, the court points out that under Japhet v. McRae, 276 S.W. 669 (Tex.Com.App.1925), Texas follows the majority view known as the non-apportionment rule, and that the difficulties and hardship encountered under that rule have brought into use what is known as the “entirety clause.” That clause is designed to make the apportionment rule applicable where the non-apportionment rule would otherwise govern. See 32 Tex.Law Review 660, 671. Gilcrease involved several owners of the mineral estate and no non-participating royalty owners.

In Cockrell, the non-participating royalty interest was reserved after execution of the lease. In a concurring opinion, Judge Calvert points out that the entirety clause of the lease was not the more common one as involved in Gilcrease and he joined in assuming that the entirety clause required an apportionment of royalty by and among owners of royalty who owned no part of the mineral estate because the parties and the court majority assumed that it did so. Pertinent portions of the concurring opinion are as follows:

“I do not wish to be understood as agreeing that the entirety clause in the leases involved in this case operates to permit or requires one owning only an interest in royalty derived from a part of the leased premises to share with others, proportionately, in the royalties from the entire leased premises. The parties have assumed that it does; and, accordingly, so has the court.”
******
“Whether an entirety clause similar to those involved in the Gilcrease and Schonwald cases operates on ownership of royalty only has not been decided in this state. The question is an important one — too important to be decided incidentally when it has been neither presented, briefed nor argued. Decisions from other jurisdictions are not entirely harmonious. * * * ”
******
“All in all, it is doubtful, to say the least, that the entirety clause in the instant leases was intended by the parties to effect an apportionment among royalty owners who own no interest in the mineral fee estate. The Gilcrease case is certainly no authority for saying that it was. I am not at all certain that the clause could reasonably be given that effect even to relieve the lessee of burdens incident to fractionalization of ownership of royalty only. There is much less reason for saying that it could reasonably be given that effect to relieve inequities among owners of royalty only. It is no answer to say that some entirety clauses, or pooling agreement, are so worded as to require an apportionment of the whole royalty among owners of royalty derived from separate parts of the leased premises. That simply means that such other clauses are different from this one, and would be no sound reason for torturing the language of this one into a meaning which the parties to the lease did not intend it to have.
“Inasmuch as the question here discussed was neither presented, briefed nor argued, our incidental determination thereof seems not to be stare decisis. Griffin v. Chubb, 7 Tex. 603, 609-610; 14 Am. Jur., Courts, § 73, p. 290 and § 76, p. 291. I, therefore, regard the question as yet an open one and join in assuming that the entirety clause required an apportionment of royalty by and among owners of royalty who own no part of the mineral fee estate.” 299 S.W.2d 686.

Although the opinions in Gilcrease and Cockrell shed considerable light on the history and purpose of an “entirety clause” we do not believe that either case decides the questions presented here.

It is well settled that the holder of the executive right, or exclusive right to lease for minerals, cannot bind a prior outstanding non-participating royalty interest by the execution of a lease containing a pooling provision; and any such lease must be joined in by the holders of the nonparticipating interests in the subject property; and ratification of the pooling or unitization agreement by the non-participating royalty owner is, therefore, necessary for the lessee to secure complete authority to operate under the agreement. Brown v. Smith, 141 Tex. 425, 174 S.W.2d 43 (1943); Minchen v. Fields, 162 Tex. 73, 345 S.W.2d 282 (1961); Nugent v. Freeman, 306 S.W.2d 167 (Tex.Civ.App. Eastland, 1957, wr. ref. n. r. e.), cited with approval in Minchen v. Fields, supra; 26 Tex. Law Review 569, 598; 42 Tex.Jur.2d, Oil & Gas, Sec. 143, p. 318.

In Guaranty National Bank & Trust of Corpus Christi v. May, 395 S.W.2d 80 (Tex.Civ.App., Waco, 1965, wr. ref. n. r. e.) it appeared that plaintiff May was the owner of the surface and the executive right to lease on five tracts. The royalty was owned in part by May and three other owners of non-participating royalty interests. May executed a lease which gave the lessee the power to pool the acreage covered by the lease or any portion thereof with other acreage to form communitized units for the production of oil and gas. At page 82 of the opinion the court said:

“May owning the executive right to lease all 5 tracts had the power to execute the oil and gas lease that he did on March 12, 1958. The authority, however, to pool the non-participating royalty interests can only be granted by the non-participating royalty owners, by either jointly executing the lease, or. by ratifying the lease. Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472; Brown v. Smith, 141 Tex. 425, 174 S.W.2d 43; Southland Royalty Co. v. Humble Oil & Refining Co., 151 Tex. 324, 249 S.W.2d 914; Minchen v. Fields, 162 Tex. 73, 345 S.W.2d 282. The royalty owners in the tract were May, Brookshire, Hampton and Koch. Brookshire ratified; Koch did not ratify; and Hampton did not ratify the pooling of his royalty.
“Under the cited authorities, the royalty interests could not be unitized or com-munitized without the joinder or ratification of all the royalty owners. Ratification by less than all of the owners does not effectuate the pooling, and there is no communitization as a matter of law.”

The above-cited cases and the reasoning contained therein are applicable in this case. The defendants, as holders of the executive right, could not without his consent alter or impair the rights of plaintiff, as a non-participating royalty owner, by including in a lease a provision for pooling or unitization nor by an entirety clause which has the effect of apportioning the royalty.

Plaintiff makes the contention that he has heretofore offered to ratify the existing lease between defendants and Sun Oil Company, the lessee. Although we believe that it is conclusively established that plaintiff has not properly ratified the lease in question, at least there is an implied finding in support of the judgment that he has not done so, and that finding is supported by evidence which is legally and factually sufficient. Since plaintiff has not ratified the lease, we do not reach any question based upon a premise that he has done so. Plaintiff cannot recover on the record here presented on such theory.

Plaintiff’s points one, two, three and four are overruled.

Under his fifth point plaintiff argues in substance that because of the entirety clause he is a third-party beneficiary and that defendants are legally bound to distribute the royalties received from the lessee on an apportionment basis on all of the properties included in the lease, even though the production in question is from property in a unitized area which does not include the land on which plaintiff’s royalty interest is owned. He cites cases which announce and follow general rules applicable to third-party beneficiary contracts.

The presumption, is that parties contract only for themselves and a third party cannot recover under a contract unless he establishes that the contracting parties intended that he benefit by it. Citizens National Bank in Abilene v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003. Also, there must be acceptance of the contract by the person for whose benefit it is made; and he must accept the contract as it was made and must succeed or fail upon its provisions. Western Union Telegraph v. Douglass, 104 Tex. 66, 133 S.W. 877; 13 Tex.Jur.2d, Contracts, Sec. 353, p. 630.

The lease between defendants as lessors and Sun Oil Company as lessee provides in part as follows:

“If production of oil or gas is obtained from any unit or units created hereunder, Lessor shall receive and will accept, even though such production be not obtained from any land subject hereto, royalty equal to such portion of a one-eighth royalty as the number of surface acres of this lease and included in such operating unit bears to the total number of surface acres in the operating unit.” (Emphasis supplied.)

It is apparent that under said provision the lessee intended to pay apportioned royalty only upon those lands which were included within a unitized tract, and that neither party to the lease contemplated payment of royalty on tracts not included in a unit unless there was production from that specific tract. In this case the production is not from the land upon which plaintiff’s royalty interest exists nor from the defendants’ lands; it is from other lands unitized with some of the lands (second tract) belonging to defendants. Plaintiff failed to establish that the lease agreement was intended for his benefit so that he would be entitled to royalty payments from a unitized area which did not include the land in which his royalty interest is owned.

Plaintiff takes the position that he not only is entitled to share in royalty from the unitized area where there presently is production, but also, in the event of production from the land on which he owns a nonparticipating royalty interest, that he would be entitled to receive his full reserved royalty. In this situation we believe that plaintiff has not established that he has accepted the contract (allegedly made for his benefit) as it was made by the parties thereto, and he cannot recover as a third-party beneficiary for that reason in any event. Plaintiff’s fifth point is overruled.

The judgment of the trial court is affirmed.


text:
    SVS CORPORATION, Appellant, v. W. R. BOYLES, Appellee.
    No. 4558.
    Court of Civil Appeals of Texas. Waco.
    Jan. 19, 1967.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Blake Tartt, Houston, for appellant.
    Monroe Northrop, Houston, for appel-lee.
   OPINION

TIREY, Justice.

The action is one for damages resulting from an auto-pedestrian accident. Plaintiff, Boyles, was crossing a street in downtown Houston and his right foot was run over by the left rear wheel of a delivery truck owned by SVS Corporation, and which was being driven by appellant’s employee, Emmett Bolden in the discharge of his duties. The jury, in its verdict, found that appellant’s driver was guilty of negligence in the following particulars: (1) In failing to keep a proper lookout; (2) In failing to yield the right-of-way; and that each act of negligence was a proximate cause of the mishap. The jury, in answer to special issues 6 and 7, found that plaintiff Boyles was negligent in failing to keep a proper lookout, and that such negligence was a proximate cause of the accident. And further found that Boyles did not fail to cross Travis Street within the designated crosswalk. It answered the damage issue in the sum of $2,000.00. The court overruled defendant’s motion for judgment on the verdict and granted Boyles’ motion to disregard the jury’s answers to issues 6 and 7 and entered judgment non obstante veredicto for plaintiff in the sum of $2,000.00.

Appellant’s points 1 and 2 are to the effect that the court erred in entering judgment non obstante veredicto disregarding the findings of the jury that Boyles was negligent in failing to keep a proper lookout which proximately caused his injuries and damages, because there is sufficient evidence of probative value to support such findings. We overrule each of appellant’s contentions for reasons hereinafter briefly noted.

As we view the record, the evidence pertinent to this accident is without dispute. The evidence is to the effect that Boyles was injured when a truck ran over his right foot while he was crossing a street in Houston. The accident occurred about 8:30 A. M., on March 30, 1962, on Travis Street where it intersects with Clay Avenue. Travis Street is a one way street for north bound traffic and Clay Avenue is a one way street for east bound traffic. Boyles had parked his car in a parking garage on the corner of Travis and Clay and walked about SO to 75 feet to the corner of Travis and Clay. The traffic light facing him changed from green to red, and he waited until the light changed back to green and then started east across Travis. He testified specifically: “I was right along in here (indicating) about two-thirds the way across the street looking straight ahead, and I don’t know why I turned my head, whether I heard a noise or whether it was just an instinct. I have forgot. Suddenly I turned and this vehicle, it was right on top of me.” At the time he turned his head to the right and looked back he was one-half or two-thirds of the way across the street. It is true that when the truck entered Clay Avenue it turned into the extreme left lane and was approaching the intersection in an easterly direction, but before it reached the intersection the driver pulled to the right and got into the middle lane and was in the middle lane when he later turned to the left and caused the accident. It is not shown how far the driver of the truck was from the intersection when he pulled into the middle lane. The driver testified specifically:

“Q. What lane of Clay were you in as you approached the intersection?
A. In the left lane.
Q. Your extreme left hand lane?
A. In the left lane, yes, sir.
Q. That would be the far lane to the north. Is that right?
A. I would be to the left as you come down because I was going to make a turn off of Clay onto Travis.
Q. Did you — you did go ahead and make your turn. Is that right?
A. Yes, sir. I made my turn on in the middle lane of the street.” (emphasis added).

He further said that the light was still green.

Boyles testified that after he turned his head to his right to look to his rear he saw that the truck was right behind him. He said: “The only thing I could think to do, I jumped back. I wanted to get out of the way to keep from getting killed. I fell on my back and I immediately tried to raise myself.” For the benefit of the jury he indicated the position he was in when he fell back, and said he was trying to raise himself, and while he was trying to get out of the way the left rear wheel of the truck ran over his right foot, but said no other part of the truck hit him; that at the time that his foot was run over he was walking across the street in the pedestrian lane and that he was the only pedestrian there at the time, and the jury found that he did not get out of the crosswalk.

It is without dispute that the truck made an illegal left turn from a lane other than the extreme left hand lane in which it had approached the intersection. Appellant contends that it is without dispute that the driver of the truck made the turn from the extreme left lane. This contention is contrary to the admission of the driver of the truck, which we have previously quoted. Section 65(d) of Article 6701d, provides:

“(d) Where both streets or roadways are one way, both the approach for a left turn and a left turn shall be made as close as practicable to the left hand curb or edge of the roadway.”

When the driver of the truck entered Clay Avenue he was in the left lane as he approached the intersection. The record is not quite clear as to just when he pulled to his right to get into the middle lane, but it is true that he did do so, and that when he made his left turn into Travis he turned to his left from the middle lane of Clay, which was in violation of the foregoing provision of the statute. Appellant’s contention that the driver of the truck made the left hand turn from the extreme left lane on Clay is contrary to the undisputed record. Mr. Boyles further testified to the effect that after the truck ran over his foot he hollered at the driver, and he was looking straight ahead; that when he yelled at the driver, the driver turned and looked out the window right at him; that the driver was very much surprised. Boyles said: “I don’t believe he could have seen me because I was on the back of his car near the rear.” Evidence of the fact that he was crouched down at the time his foot was run over was corroborated by testimony of appellant’s driver. The witness Morris testified to the effect that he saw the accident; that the truck turned real close to Boyles and that Boyles jumped back and the truck ran over his foot with the left rear wheel. He testified specifically:

“Q. Did the truck approach Mr. Boyles from his right, in front or to the rear?
A. To the rear and came around.”

As we understand appellant’s brief, it contends that when Boyles turned his head to the right to look to his rear that he was guilty of negligence, and that this testimony is sufficient to support the jury in its findings to issues 6 and 7. We are certainly not in accord with this view. Since Boyles had reached a distance from one-half to two-thirds of the way across Travis Street, and since he was in the crosswalk, and since the traffic light was green, and traffic on Clay Avenue could move only in an easterly direction, unless it desired to turn to its left and enter Travis Street, and since as a pedestrian he had the right-of-way, and since the only traffic on Clay that could harm him would be the traffic to his rear and to his right, he had the right to be looking ahead and in the direction in which he was going, and the fact that he turned his head to look to his rear and to his right, in our view, is not negligence and is not sufficient to sustain the finding that his action in so doing was negligence and a proximate cause of the accident. It is undisputed that the driver turned his truck to the left from the middle lane of Clay Street instead of from the extreme left lane, and that in so doing he violated the law. Boyles had the right to believe that no one would turn from the middle lane on Clay to enter Travis Street. He was not required to anticipate negligent or unlawful conduct on the part of others. See Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, points (1, 2), p. 275, 1958. When he turned his head to the right and looked to the rear and saw the truck some 2 or 3 feet from him, he jumped back to get out of its way, and it is without dispute that the driver of the truck did not see Boyles until after the accident. As previously stated, the jury convicted the driver of the truck of failing to keep a “proper lookout” and found that it was the proximate cause of the accident. Our view of the record is that there is no primary evidence that Boyles was guilty of negligence, nor do the undisputed facts and circumstances here tend to prove that he was guilty of any negligence whatsoever.

“To establish a fact by circumstantial evidence, the circumstances relied on must have probative force sufficient to constitute the basis of a legal inference; it is not enough that they raise a mere surmise or suspicion of the existence of the fact or permit a purely speculative conclusion. The circumstances relied on must be of such a character as to be reasonably satisfactory and convincing. At all events they must not be equally consistent with the nonexistence of the ultimate fact.”

See Big Three Welding Equipment Co. v. Reeh et al., Tex.Civ.App., 301 S.W.2d 504, (n. w. h.) May, 1957.

Such being our view, the court did not err in disregarding the jury’s answer to issues 6 and 7. We think the undisputed factual situation here is ruled by the pronouncements in the following cases: Dixon v. Burling, Tex.Civ.App., 277 S.W.2d 957; Lane v. Dallas Transit Co., Tex.Civ.App., 331 S.W.2d 821; Lynch v. Ricketts, supra; MacDonald v. Skinner, Tex.Civ.App., 347 S.W.2d 950; Miller v. Jones, Tex.Civ.App., 270 S.W.2d 303; Parham v. Norwood, Tex.Civ.App., 329 S.W.2d 506; Sale v. Stanley; Tex.Civ.App., 348 S.W.2d 767; Seinsheimer et al. v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063; Talley Transfer Co. et al. v. Cones, Tex.Civ.App., 216 S.W.2d 604; Thompson v. Railway Express Agency, Tex.Civ.App., 206 S.W.2d 134.

The judgment of the trial court is affirmed.