author: McDONALD, Chief Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Milford BEHRINGER et ux., Appellees.
    No. 4642.
    Court of Civil Appeals of Texas. Waco.
    Sept. 28, 1967.

      Richey, Sheehy, Teeling & Cureton, Benjamin N. Hamilton, Waco, for appellant.
    Dunnam, Dunnam & Dunnam, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal from a judgment overruling a plea of privilege. Plaintiffs Behringer and wife, sued defendant Insurance Company in McLennan County, alleging that plaintiffs had in November, 1965 been injured in an automobile collision when an automobile belonging to Barbara Pepper and driven by John H. Aiken, Jr. ran into them; that plaintiffs sued Aiken, and recovered a judgment for $4500. for Behringer and $7500. for his wife, which judgments are final. Plaintiffs further alleged that defendant Insurance Company had a policy covering Barbara Pepper and anyone using her automobile with her permission, and plaintiffs are third party beneficiaries under the terms of such policy.

Defendant Insurance Company filed its plea of privilege, alleging it was a foreign corporation with its principal office for Texas in Dallas County, and prayed the cause be transferred to Dallas County.

Plaintiffs controverted, asserting venue in McLennan County under Subdivision 23, Article 1995, Vernon’s Ann.Tex.Civ.St.

The trial court, after hearing, without a jury, overruled defendant’s plea of privilege.

Defendant appeals, contending the trial court erred in overruling its plea of privilege because there is no evidence, or insufficient evidence, that Aiken, the driver of Pepper’s automobile, was driving with Pepper’s permission.

Subdivision 23, Article 1995, V.A.T.S. provides that suits against corporations may be brought in the county in which the cause of action, or a part thereof, arose. The collision occurred in McLennan County.

Miss Pepper’s insurance policy issued by defendant, provided liability coverage to the named issured (Miss Pepper) and “to any other person using such automobile with the permission of the named insured.”

The trial court found as a fact that at the time of the collision Aiken was operating the automobile with the permission of Miss Pepper.

The sole issue for determination is whether the evidence sustains the finding that at the time of the accident, Aiken was operating the Pepper automobile with her permission.

The evidence shows Aiken lived in the home of Miss Pepper’s parents; that he was Miss Pepper’s boy friend; went on dates using her car; had driven her car by himself when he desired to go to the store to get things for Miss Pepper, her family, and also for the sole purpose of his personal errands, and that she never objected; that on the day of the collision Aiken and Miss Pepper came to Lake Whitney in the car, and drove on to visit the Spences, friends of Miss Pepper, in Waco. Miss Pepper did the driving and left the car in front of the Spences’ house with the keys in the ignition. After visiting the Spences for a few minutes the subject of Pepper’s car, which was new, came up, and all went into the yard where the car was parked, and Aiken and the Spences’ 13 year old boy got into the car. The Spences’ son asked Aiken to take him for a ride in the new car; Miss Pepper said “No, you’re not taking him for a ride”, and Aiken said “It won’t hurt anything”, and shut the door of the car and they drove off. Miss Pepper made no effort to take the keys away from Aiken, and made no further effort to stop Aiken. Shortly thereafter the collision with plaintiffs occurred. A few weeks thereafter Miss Pepper and Aiken were married.

Under the standard omnibus clause of an automobile liability policy, an operator is entitled to protection if his use of the vehicle is with either the express or the implied permission of the named insured. While express permission must be affirmatively stated, implied permission may be inferred from a course of conduct or relationship between the parties in which there is mutual acquiescence or lack of objection, signifying consent. It is usually shown by usage and practice of the parties over a period of time preceding the occasion on which the automobile was used. Royal Ind. Co. v. H. E. Abbott & Sons, Tex.Sup., 399 S.W.2d 343.

Defendant contends Miss Pepper’s statement to Aiken “No you’re not taking him for a ride”, negates any implied permission Aiken had to drive the car.

The record here supports the finding that Aiken had been given actual and implied permission to operate the automobile by Miss Pepper in the past. On the occasion in question Miss Pepper testified she told Aiken “No you are not taking him for a ride.” Miss Pepper, however, did not remove the keys from the car, and made no further effort to stop Aiken. Under such circumstances the trier of fact had a right to take all circumstances into consideration, and conclude that if the use of the car by Aiken was not with Miss Pepper’s tacit or implied consent, she could have found some way to prevent its use. Christiansen v. Schenkenberg, 204 Wis. 323, 236 N.W. 109. Or the trier of fact could have concluded that her statement was merely an expression of her wishes rather than a revocation of authority to drive the car. Randig v. O’Hara, 123 Pa. Super. 251, 187 A. 83. Or as stated in Employers Mut. Cas. Co. of Des Moines v. Mosqueda, 5th Cir., 317 F.2d 609, “ ‘Actions speak louder than words,’ because here there was a possibility that a prior course of conduct could outweigh even an express statement by (the owner).”

In any event, Miss Pepper was directly interested in the law suit, and the trial court had a right to rej ect her testimony. 62 T.J. 2d, Secs. 372, 373; Anchor Casualty Co. v. Bowers, Tex., 393 S.W.2d 168.

We think there is ample evidence to support the trial court’s finding that Aiken was operating the automobile at the time of the collision with the permission of Miss Pepper.

Defendant’s points and contentions are overruled.

Affirmed.


source: Caselaw Access Project

author: DAVIS, Justice.

license: Public Domain

text:
    LANPAR COMPANY, Appellant, v. A. Thomas SINGLETARY, Appellee.
    No. 7828.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 26, 1967.
    Rehearing Denied Oct. 24, 1967.

      Jack D. Eades, Dallas, for appellant.
    L. Vance Stanton of Billings, Pierce, Gil-ley & Stanton and1 Roy P. Cookston, Dallas, for appellee.
   DAVIS, Justice.

A suit for wages, commissions and attorney’s fees. The trial court instructed a verdict in favor of appellee. Appellant has perfected its appeal and brings forward two points of error.

By the two points, appellant says the trial court erred in instructing a verdict in favor of appellee because probative evidence about which reasonable minds could differ was introduced showing that certain of the appellant’s sales for which appellee was allowed commissions were house accounts; and, because probative evidence about which reasonable minds could differ was introduced showing that appellee was discharged for conduct amounting to bad faith and disloyalty toward the employer of such a nature as to constitute a forfeiture of any unpaid commissions.

Appellee challenges both these points.

Appellee was employed by appellant as a pharmaceutical products salesman in April, 1963, at $500.00 per month plus an eight per cent (8%) commission. The evidence shows that appellee continued to work as such salesman until Friday, January 8, 1965. Immediately prior thereto the president of Lanpar Company, Inc., either had a heart attack or a stroke in the State of California. In the summer of 1964, the president had to have a hernia operation in Mexico City, Mexico. He was a man of about 75 years of age and appellee thought that he was about to pass away. Appellee announced on Saturday, January 9, 1965, that he was quitting because he knew that he could not get along with the son-in-law of the president, as president of the company.

When appellee was hired, the president of appellant told appellee that only two house accounts would be omitted from his commissions. A house account is one within the salesman’s territory, where the accounts are usually phoned in, on which the salesman does not receive a commission.

An auditor was appointed. According to the auditor’s report, the salary and commissions were due. The attorney fee was stipulated and agreed upon.

All the evidence that was offered showed appellee’s reputation, character and dealing to be excellent.

There is no evidence that appellee retained any profits received by him in the course of his employment; or, that he accepted, appropriated, or took any secret profit in the nature of a bonus, or other personal benefit from any customer; or, that he defrauded his employer; or, that he informed anyone of confidential matters; or, that appellant lost any customers, sales or money as the result of any acts on the part of appellee.

There is no evidence of probative value where reasonable minds might differ as to any material fact issue. 38 T.J. 2nd 174 and 182, Secs. 30 and 35, and the authorities cited thereunder. Appellee is also entitled to recover attorney’s fees. Art. 2226 R.C.S. The trial court did not err in granting the motion for an instructed verdict. 56 T.J. 2nd 545, Sec. 206; 3 McDonalds Tex.Civ. Prac. 1025, Sec. 11.25. The points are overruled.

The judgment of the trial court is affirmed.


author: SELLERS, Justice.

text:
    Will BRATTON, Appellant, v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Appellee.
    No. 292.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 5, 1967.
    Barber, Seale & Stover, John H. Seale, Jasper, for appellant.
    Keith, Mehaffy & Weber, Beaumont, Robert Q. Keith, Beaumont, of Counsel for appellee.
   SELLERS, Justice.

We take the following from Appellant’s Brief:

“This is a workmen’s compensation case, in which the plaintiff sought benefits for an injury sustained on April 19, 1966 while working for Hal Land in San Augustine County, Texas. Coverage was with the defendant, and all matters were stipulated except injury, extent and duration of disability, and the question of whether the disability was due solely to prior causes. The jury found that the plaintiff sustained an injury, sustained no total incapacity, and two weeks of partial incapacity beginning on April 19, 1966, with a wage earning capacity during partial incapacity of $32.50 a week, and the disability was not due solely to prior causes. Average weekly wage had been stipulated at $65.00 a week, and the Trial Court therefore rendered a judgment based on the jury verdict, awarding the plaintiff the total amount of $40.56. Appellant has duly perfected this appeal from the order of the Trial Court overruling his motion for new trial. In this Brief, the parties will be referred to by their trial court designations.
“POINTS OF ERROR
“FIRST POINT
“The Trial Court erred in entering Judgment based on the jury’s answer to Special Issue No. 5 of the Court’s Charge, because such answer is so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.
“SECOND POINT
“The Trial Court erred in entering Judgment based on the jury’s answer to Special Issue No. 10 of the Court’s Charge, because such answer is so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.
“STATEMENT UNDER FIRST ' AND SECOND POINTS OF ERROR
“Special Issue No. 5 of the Court’s Charge was conditioned on an affirmative answer to Special Issue No. 4 (which the jury did answer affirmatively), and Special Issue No. 5 was as follows:
‘Do you find from a preponderance of the evidence that any of such incapacity, if any you have found, was total ?’
“The jury answered Special Issue No. 5 ‘No’.
“Special Issue No. 10 was conditioned on an affirmative answer to Special Issue No. 8 (which the jury did answer affirmatively), and Special Issue No. 10 was as follows:
‘What do you find from a preponderance of the evidence to be the duration of such partial incapacity, if any you have found?’
“The jury answered Special Issue No. 10 ‘2 weeks’.”

The appellant, on April 19, 1966, was a member of a crew working for Hal Land in San Augustine County hauling logs from the woods. The logs were of various lengths up to 40 feet, and from one to two feet in diameter. Briefly stated, the logs were snaked out of the woods and placed in piles and then the truck was drawn up alongside of the pile, and loading of the truck takes place. The first thing done is to place a log alongside the wheels of the truck on the side where the pile of logs is stacked, and the actual lifting of the logs onto the truck is done by machinery operated on the opposite side of the truck being loaded by means of a cable with tongs hooked to each end of the logs to be loaded. Then this cable would be tightened from the opposite side of the truck, pulling the log from the stack over against the log placed against the wheels of the truck and then on up onto the bed of the truck. On April 19, 1966, the appellant was hooking tongs to one end of the logs being loaded. At the time of the accident the truck had been loaded, and appellant and another member of the crew were in the process of tying a chain or cable around the logs on the truck so that they would not fall off. During this process, appellant was standing about midway between the front and back of the loaded truck on the side where the logs lay against the wheels. A log was moved behind appellant over against the log where he was standing, catching appellant’s leg and foot between the two logs. Appellant got his foot loose and being asked if it hurt him, said that it did. However, he worked on until noon, this happening about ten o’clock in the morning, but did not work in the afternoon. Appellant did not desire to see a doctor at the time but said he would just wait until quitting time to go in to town. That evening, when they went in to town, one of Mr. Land’s hands with whom appellant rode in, carried him to a doctor who was not in, so he was carried to Dr. Buchele who x-rayed and examined appellant and found no broken bones and only some swelling in the leg, and gave him a prescription for medicine which the appellant did not have filled. The next day one of Mr. Land’s employees called on appellant to see if he needed anything, and appellant asked him to get his money for his work, which the employee did. Two days after appellant was injured, he filed a claim with the Industrial Accident Board for compensation, and on May 2, 1967, was sent to Dr. Dickerson by his attorney for examination. Here is appellant’s version of the accident as given on the trial and as related to Dr. Dickerson :

“Q Now then, tell me just how it was that you got hurt?
“A Well, we was binding the truck down. The truck driver throwed the cable across. Quite naturally, I was on this side fixing to pass it back and then the log hit me. It knocked me down across the wheel log. I didn’t know what happened at the time. I jumped around there and got aloose and then I seen what had happened.
“Q Well now, you were facing which way now?
“A I was facing the truck and the log just like that to the truck, and the log come from behind.
“Q All right, and where — you say the log came from behind you?
“A Yes, sir.
“Q Where did it come from?
“A It come from back off a pile of logs behind me.
“Q It was on a pile of logs?
“A Yes, sir, behind me, with tongs.
“Q Now, how high would this pile of logs be, Will?
“A Well, possibly — I couldn’t exactly say — some four or five or six logs thick.
“Q Four or five or six logs high?
“A Piled up, you know, in there.
“Q Now, what size logs are we talking about ?
“A We’re talking about pretty good logs. That log would be like that. (Indicating)
“Q How long longs were these?
“A Well, we was cutting forty foot logs and thirties, like that, I don’t know just exactly whether that was one of the forties or something longer or something shorter. It was a long log.
“Q Now, this log that hit you, were the tongs hooked into it?
“A Yes, sir.
“Q Who had hooked those tongs in there ?
“A We left them hooked. We always left them. I left one and Mr. Jake left another. We always left them hooked in there.
“Q And who was running the equipment that controlled this?
“A Mr. Hal.
“Q Mr. Hal was running the equipment?
“A He was running it.
“Q And in running that equipment, what does he do ? Does he make the lines tight and pull the logs ?
“A Yes, sir, he pick up the logs and set them on the truck. He run the loader.
“Q And you had your — you were facing the truck which would put your back to where the logs were coming from?
“A Yes, sir, it put my back to the log.
“Q Now, what part of your body did the log hit?
“A He me right here in the back and went down my hips and then caught my legs.
“Q You’re pointing down to the lower part of your back around your belt line?
“A Yes, sir. Of course, that knocked me under the truck you see.
“Q And now did that — did you go all the way to the ground or did you go against the truck?
“A Went all the way down to the ground with my hand, bumped my head on the coupling pole when I went under.
“Q Bumped your head on what?
“A Coupling pole.
“Q Coupling pole ?
“A Yes, sir, knocked me through under the truck.
“Q Now, you’re — as I understand it, you fell forward?
“A Yes, sir, fell forward.
“Q And so your hands hit the ground, is this right?
“A Yes, sir.
“Q As a result of that, when you started to try to get up, was your right foot pinned between a couple of logs?
“A Yes, sir, my leg was pinned. I twisted around and got out.
“Q You had to twist around to get out?
“A I had to twist clean around, twisted to get out.
"Q Now, did you have a big bruise or mark of some kind on your right ankle, down in there?
I had a big blood-shot scarred place. >
Now then, what happened right after this, were you taken to see the doctor ? ¡o
No, sir. >
Did you stay out in the woods the rest of the day? ©
"A Stayed there the rest of the day. I hopped around there a little until noon trying to do something. Quit for noon. I never got to do no more. I was paralyzed.
What did you do then in the afternoon? a
I just set there in the pickup truck until they quit. >
You sat there and did what? a
Set there until they quit, quitting time. c
Did you say you sat there in a pickup truck? a
Yes, sir. >
Whose was that, Mr. Land’s truck? ©
Yes, sir, Mr. Land’s truck. >
Quitting time was what, four or five o’clock in the afternoon? ©
"A To my recollection, I reckon we quit sometime around four o’clock.
Well, anyway— ©
I didn’t have no way of knowing, but we was in here around five o’clock. >
All right. And did you come on into town here in San Augustine ? ©
Yes, sir. <
“Q And did somebody take you to the doctor ?
“A Yes, sir, he sent me up there by one of the employees.
“Q Mr. Land sent you to the doctor by one of his employees ?
“A Yes, sir.
“Q Did he send you to see Dr. Buchele here in San Augustine ?
“A Yes, sir.
“Q You had never seen Dr. Buchele before?
“A No, sir.
“Q And what did Dr. Buchele do ?
“A Well, Dr. Buchele sent me in there with the nurses and they would — he said x-ray the leg and told me it wasn’t broken. That’s what he told me, but they done that, Dr. Buchele didn’t do that.
“Q In other words, he had the nurses X-ray your foot?
"A The nurses done that.
“Q And he told you it wasn’t broke ?
“A Yes, sir, he told me it wasn’t broke.
“Q Did he give you any examination other than X-raying the foot?
“A No, sir, didn’t touch me nowhere else.
“Q Now, did he give you some kind of prescription for medicine?
“A He give me a prescription but it never was filled. I didn’t have nothing to fill it with.
“BY MR. SEALE: Mark this please. (Reporter marks prescription P-6)
“Q Now, you say you can’t read, but anyway whatever prescription he gave you, did you give that to me?
“Q Now then, Dr. Dickerson has testified here that you came to see him on the 2nd of May ?
“A Yes, sir.
“Q Which would have been about two weeks after you got hurt, is that right?
“A Yes, sir.
“Q And he’s also testified I sent you over there to see him ?
“A That’s right.
“Q You had never seen or heard of Dr. Dickerson before?
“A No, sir, hadn’t never seen him before.
“Q All right. And then Dr. Dickerson put you in the hospital the first day he saw you ?
“A Yes, sir.
“Q Now then, what kind of treatment did you get while you were in the hospital the first time ?
“A Well, he give me real good treatment. I was in those traction, laying down with them weights on me.
“Q Uh huh.
“A I stayed in there all of the time I was in there, and then—
« * * * »

Dr. Buchele testified that appellant’s only complaint to him was of his foot and leg which he X-rayed and found no broken bones and made no other examination of his body.

Dr. Dickerson testified that he saw appellant on May 2 and immediately placed him in the hospital with traction:

“Q All right, sir. Tell me if you will what is the first part of a usual examination a doctor performs ?
“A It’s taking a history, trying to find out what’s happened.
“A I sure did.
“Q In other words, letting the man tell you what he says happened and what he’s complaining of?
“A Yes, sir.
"Q In medical terms this is known as taking a history?
“A Yes, sir.
“Q Did you take a history from Will Bratton .when you first saw him?
“A Yes, I did.
“Q Again if you wish, you may refer to your notes, and tell me the history he gave you, Doctor ?
“A Briefly, I believe a log hit his right leg, knocked him down, injured his right leg and hip and lower back. This happened on April 19, 1966. He has not been able to work since.
“Q Sir?
“A And he has not been able to work since.
“Q All right. You saw him then on May 2, which would be some two weeks or so after his April 19 occurrence ?
“A Yes, sir, this is correct.
“Q Then following the taking of a history did you perform an examination on Will Bratton?
“A I did.
“Q If you will, Doctor, just tell me what that examination consisted of and what your findings were?
“A Of course, it was primarily limited to the areas of his body he was complaining about, and, of course, this was his lower back, his foot, and we had loss of motion in the lower back, limitation from side to side and forward- and backward. There was pain and spasm in his lower back, some tenderness.
“Q Now, Doctor, let me interrupt you right there. What do you mean by spasm in the lower back ?
“A This is an involuntary contraction of the muscles.
“Q When you say involuntary contraction of the muscles, that means this is something that the patient has no control over?
“A This is correct, yes, sir.
“Q Now, doctors have what they call objective findings and subjective symptoms, is this correct?
“A Yes, sir.
“Q Will you, if you will, please, doctor, just tell the jury what you mean by that? What the difference is between the two ?
“A Well, subjective findings’ or symptoms is what the patient tells you he hurts or feels, and objective is generally thought of as something that the doctor can see or feel or measure himself.
“Q What is muscle spasm in the lower back? Is that objective or subjective?
“A This is an objective finding.
“Q Something that the patient has no control over?
“A This is correct, yes, sir.
“Q Now then, Doctor, what — what does a finding of muscle spasm in the lower back, what does that generally indicate to you as a doctor?
“A There’s pain in this area and this is Mother Nature’s way of putting a splint here to keep movement down to prevent further pain.
“Q Now then, you talked about limitation of motion that you found in this patient, what do you mean by that?
“A Limitation of motion in muscles of his hips, movement of the body trunk from the hips, that is, stooping, bending, twisting were rather inadequate.
“Q And then what do you mean when you say tenderness?
“A This is pain upon pressure.
“Q All right. To an experienced examiner, a doctor who has had many years of experience in examining people, is tenderness a completely subjective thing or is it some of both? In other words, can the examiner tell it it’s really hurting when you press?
“A It’s primarily a subjective finding and you can never completely eliminate the subjective aspect in this thing, but you can usually tell when your patient is over exaggerating symptoms and how much of it is genuine pain or whether or not he’s over exaggerating. Lot of this is a question of judgment, but this business of tenderness is primarily a subjective complaint.
“Q In your judgment in this case, was there ever any indication he was over exaggerating?
“A No, sir, I don’t think so.
* *

On cross-examination, the doctor testified:

“Q The story he related to you that a log hit him in the leg?
“A I believe so. Foot — leg—right leg.
“Q We’re getting to pretty close ground here now, make sure of what your— what your facts are.
“A All right, sir. Log hit his right leg jerking him to the ground.
“Q Let’s stop right there. Log hit right leg jerking him to the ground?
“A Yes, sir.
“Q Okay. And then based on that history and based on the facts which you found, you concluded that he had this sprain or strain of his back?
“A Yes, sir.
“Q If that history is false, then your conclusions might also be weak, is that right, Doc?
“A Yes, sir.
“Q They are based on the fact—
“A Yes, sir.
“Q - — on the assumption the man was telling you the truth ?
“A Yes.
“Q Now, you noted a bruise on his right leg. Where ? Can you give us some idea?
“A On the instep.
“Q On the instep of his foot? Is that where it was?
“A Yes, sir.
“Q Did you take any X-rays of his foot ?
“A No.
“Q I assume it got all right?
It didn’t give him any trouble at all. >
All right. And it’s not giving him any trouble today? d
No, sir. >
Did he have any real disability from his foot the first time you saw him ? d
‘A No, sir.
“Q Sofaras the foot injury is concerned, there’s nothing wrong with him?
“A No, sir.
“Q Doc, if he didn’t get hit in the leg, if the log just brushed against his foot as opposed to his leg, and if he wasn’t knocked to the ground as he has told you—
“A Yes, sir.
“Q —would you then assume that whatever condition he’s got in his back was caused by the arthritis and not by some injury?
“A It would certainly be mitigating circumstances all right. Yes, sir, sure would.
⅜ *

Dr. Buchele saw appellant again about the time of the trial and testified from his examination that he could not say whether appellant was hurt or not.

There was an eye witness to appellant’s injury and his evidence is to the effect that the log which hit appellant was only moved some two or three feet sliding on the ground; that appellant was not knocked to the ground and that the log only struck the foot and leg below the knee, and appellant released himself from the log and complained only of his foot hurting him at the time.

After reviewing the entire statement of facts, this Court is of the opinion that the assignments of appellant must be overruled. This Court in a recent opinion by Chief Justice Dunagan has stated the rule governing this Court when the assignment seeks to reverse a case based on the preponderance of the evidence being against the jury’s verdict, and we are following that case here. Royal v. Cameron, Tex.Civ.App., 382 S.W.2d 335.

The judgment of the trial court is affirmed.


author: CLAUDE WILLIAMS, Justice.

text:
    TRANS-SOUTH HYDROCARBONS COMPANY, Appellant, v. TRINITY INDUSTRIES, INC., Appellee.
    No. 16937.
    Court of Civil Appeals of Texas. Dallas.
    July 14, 1967.
    Rehearing Denied Sept. 29, 1967.

      Edwin M. Sigel, of Childs, Fortenbach, Beck & McClure, Houston, for appellant.
    John D. Crawford and Richard G. Rogers, of Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Venue action involving subdivision 5, Art. 1995, Vernon’s Ann.Civ.St. Suit was instituted in Dallas County by Trinity Industries, Inc. against Trans-South Hydrocarbons Company upon a verified open account. Plaintiff alleged that its predecessor, Trinity Steel Company, Inc., had sold and delivered to defendant certain equipment, more particularly described as an 18,000-gallon Propane Storage Tank. Defendant filed its plea of privilege to be sued in Harris County, its domicile. Plaintiff responded with a controverting plea in which it was asserted that by reason of a-written contract between the parties the obligation of defendant was performable expressly in Dallas County and therefore venue was properly laid in such county perforce subdivision 5, Art. 1995, V.A.C.S. The written contract relied upon by plaintiff in its controverting plea was referred to in plaintiff’s first amended original petition as being an invoice dated October 29, 1965, mailed by plaintiff to defendant and containing a provision for payment in Dallas County.

The trial court, sitting without a jury, overruled defendant’s plea and this appeal follows.

The facts are virtually without dispute. On January 22, 1965 appellee’s predecessor, Trinity Steel Company, Inc., prepared and mailed to appellant at its offices in Houston, Harris County, Texas, its written confirmation of a telephone quotation of the same date. This written confirmation contained a complete description of one 18,000-gallon Propane Storage Tank, complete with basic fittings and magnetron float gauge, the price being $5,761, with truck freight allowed to Eagle Pass, Texas. Apparently the offer for the sale of the tank in question was not immediately accepted by appellant. Mr. John Hardin, the Assistant Secretary of appellee corporation, testified that the offer would have had to be accepted some time prior to the time of fabrication of the tank and that this process would have normally consumed from four to six weeks. From the invoice subsequently mailed it was indicated that the order for the tank was “entered” on May 26, 1965. Mr. Hardin was not positive whether the offer was accepted by means of a written instrument or orally but he was certain that it was accepted. Subsequent to the fabrication of the tank it was then shipped, at the instruction of the appellant, to Fletcher Butane Company at Eagle Pass, Texas. The tank was received by Fletcher Butane Company in Eagle Pass, Texas and receipted for by an employee of that company. Thereafter, on October 29, 1965, appellee’s predecessor prepared and mailed to appellant at Houston, Texas the invoice which contained a description of the tank sold and the price therefor, including transit charges, and designating payment in Dallas, Texas. It is undisputed that this invoice was not signed or acknowledged by appellant or anyone on its behalf. The invoice was not paid and this action followed.

On the hearing of the plea of privilege appellee introduced the written confirmation of the telephone offer, dated January 22, 1965; the bill of lading to Fletcher Butane Company at Eagle Pass, Texas; the invoice from Trinity Steel Company, Inc. to Trans-South Hydrocarbons, Inc. on October 29, 1965; an invoice from Trinity Steel Company, Inc. to Trans-South Hydrocarbons, Inc. dated December 30, 1964; and the oral testimony of one witness, Mr. John H. Hardin. Mr. Hardin testified that the transaction between the two companies was a completed one prior to the time the invoice was mailed to appellant corporation on October 29, 1965.

As to the course of business dealings between the two companies prior to the one in controversy, Mr. Hardin testified that an invoice dated December 30, 1964, as well as others, had been sent to appellant company but that he could not testify where they had been paid.

OPINION

Subdivision 5 of Art. 1995, V.A.C. S., provides that if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where defendant has his domicile. The contract relied upon for venue purposes must be proved and must be the real obligation relied upon to form the basis of the cause of action. Thompson v. Republic Acceptance Corp., 388 S.W.2d 404 (Tex.Sup.1965); Drexler v. Architectural & Commercial Sales, 375 S.W.2d 550 (Tex.Civ.App;, Corpus Christi 1964); and Pinkston-Hollar, Inc. v. Big Three Welding Supply Co., 378 S.W.2d 715 (Tex.Civ.App., Fort Worth 1964).

The cases are uniform in holding that it is not necessary, in order to constitute a “contract in writing”, that the agreement be signed by both parties; that one may sign and the other may accept by his acts, conduct or acquiescence in the terms of the agreement. Vinson v. Horton, 207 S.W.2d 432 (Tex.Civ.App., Texarkana 1947); Dowdell v. Ginsberg, 244 S.W.2d 265 (Tex.Civ.App., Fort Worth 1951); Gottlieb v. Dismukes, 230 S.W. 792 (Tex.Civ.App., Austin 1921); Universal Mills v. Lasseter, 87 S.W.2d 343 (Tex.Civ.App., Fort Worth 1935); Harrison v. Facade, Inc., 355 S.W.2d 543 (Tex.Civ.App., Dallas 1962).

Appellee contends that it has satisfied the burden of proof cast upon it by introducing in evidence the invoice dated October 29, 1965 which expressly contained a provision for payment in Dallas County. It further contends that the written invoice, received by appellant corporation in Harris County and accepted by it amounted to the consummation of the contract of sale between the parties and therefore justified the trial court in finding impliedly that there was a written contract between the parties expressly conferring venue in Dallas County, Texas. In support of its contention appel-lee relies upon the rule announced in Dowdell v. Ginsberg, 244 S.W.2d 265 (Tex.Civ.App., Fort Worth 1951) and followed by this court in Harrison v. Facade, Inc., 355 S.W.2d 543 (Tex.Civ.App., Dallas 1962).

Appellant contends that there is no evidence to justify the trial court’s implied finding that there was a contract in writing between the parties but on the contrary the invoice relied upon by appellee came subsequent to the consummation of a completed oral agreement between the parties and therefore cannot form the basis of an exception to the venue statute. Appellant relies upon the rule announced in Ferguson v. Sanders, 133 S.W.2d 806 (Tex.Civ.App., Dallas 1939); Smith Grain Co. v. H. H. Watson Co., 285 S.W. 868 (Tex.Civ.App., San Antonio 1926); and Back v. Radio City Distributing Co., 286 S.W.2d 672 (Tex.Civ.App., Dallas 1956).

We agree with appellant that a careful examination of the record in this case reveals that there is no evidence to support, appellee’s contention, and implied finding of the trial court, that the written invoice relied upon by appellee was such a contract between the parties as would confer venue in Dallas County. We think the case falls clearly within the rule announced in the authorities relied upon by appellant. The cases relied upon by appellee, while clearly sound, involve a different factual situation than here presented and are therefore not controlling.

The paramount question is whether the agreement between the parties to this sales transaction was completed in every detail prior to the time the invoice was mailed on October 29, 1965. We think the record demonstrates that it was. Appellee corporation had mailed to appellant a written confirmation which included the measurements of the tank in question together with the price to be paid therefor. Later appellant accepted these terms, ordered the tank to be fabricated and delivered to Eagle Pass, Texas. The tank was fabricated and delivered pursuant to these instructions. This amounted to a completed contract. Nothing was left open or undone except payment of the amount previously agreed upon. As of this time no place of payment had been designated or agreed upon which could confer venue other than at place of residence of purchaser. This brings the case clearly within the language used by Justice Looney of this court in Ferguson v. Sanders, supra, wherein he said:

“The parol agreement having been consummated, without mentioning the place of its performance, we do not think the Corporation could add a venue provision, by language incorporated in the invoice, afterwards mailed to the defendants, * *

In Harrison v. Facade, Inc., supra, we recognized both rules and found that in that case the contract had not been completed prior to the invoice.

Appellee’s position cannot be defended by its contention of a previous course of dealing between the parties for the simple reason that there is no evidence in this record that appellant paid prior invoices representing other transactions with appellee in Dallas County.

There being no evidence in this record that appellee sustained its burden of proof to maintain venue in Dallas County, the judgment of the trial court must be reversed.

Appellant’s points of error are sustained and the judgment of the trial court is reversed and remanded with instructions to sustain the plea of privilege filed by Trans-South Hydrocarbons Company.

Reversed and remanded.


author: DUNAGAN, Chief Justice.

text:
    EMMCO INSURANCE COMPANY et al., Appellants, v. J. W. BURROWS, Appellee.
    No. 295.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 5, 1967.
    Rehearing Denied Oct. 26, 1967.

      Ramey, Brelsford, Flock & Devereux, Tracy Crawford and Michael A. Hatchell, Tyler, for appellants.
    Gordon Wellborn & Rex Houston, Vaughan O. Stewart, Henderson, for appel-lee.
   DUNAGAN, Chief Justice.

Essentially, this is a suit to recover proceeds allegedly due under an automobile insurance policy as the result of a collision in Virginia involving the insured vehicle of appellee.

On January 8, 1963, appellee purchased a new 1963 GMC diesel truck. The truck was financed with Associates Discount Corporation. A policy of collision insurance on the truck was issued by Emmco Insurance Company.

Appellee used the truck in question in his business from the time it was purchased until June 15, 1965. On this latter date, the truck was involved in a collision in the state of Virginia from which this lawsuit resulted.

Appellee brought this suit against the insurer, Emmco Insurance Company, to recover damages to the vehicle in the amount of $13,500.00 as the fair market value of the truck, less $1,200.00 salvage value. Alternatively, appellee sought to recover (in accordance with the terms of the insurance policy) $10,500.00 as the reasonable cost of repairs to the truck, if it were found to be repairable.

The case was tried to a jury, which found (1) that the truck could not be repaired, and (2) that the reasonable cash market value of the truck in Virginia before the collision was $13,500.00 and $1,200.00 after the collision. The jury further found that, for the protection of the truck, it was necessary to tow it to Dallas and that a reasonable charge, for such towing was $400.00.

On the basis of this verdict, the following judgment was entered against Emmco Insurance Company: (1) $12,300.00 as damages to the truck, (2) $400.00 as reasonable expenses for the protection of the vehicle.

In addition to the cause of action alleged against Emmco Insurance Company, appel-lee’s third amended original petition also sought a “declaratory judgment action” decreeing that certain installment payments due the other defendants, Associates Discount Corporation or Associates Investment Company, were suspended in July of 1965 until the termination of the present suit. Such relief, as prayed for, was also awarded in the trial court’s judgment.

The points of error will be discussed in an order different from that followed by the appellants.

We will first consider appellants’ Point of Error No. 9 wherein it is alleged that “The trial court erred in overruling defendants’ motion for continuance.”

This case was set for trial in the court below for the week of June 6, 1966. On that date, appellants filed their first motion for continuance because of the absence of A. E. Gammon, Senior Claims Adjuster for Emmco Insurance Company. This motion was controverted by the appellee. After hearing testimony on said motion, the same was overruled by the court. It was alleged in said motion that Gammon was unable to appear in court during the week of June 6th due to illness. A doctor’s certificate attached to said motion stated that Gammon was not physically able to appear in court and testify during the week of June 6, 1966. Gammon had not been subpoenaed, but it was alleged that appellants relied upon him being present and testifying in the case.

Rule 252, Texas R.C.P., not only requires that an application for continuance because of the absence of a witness shall state the name and residence of such witness, but must also state what the movant expects to prove by said witness, and in such specific terms as to advise the court of the relevancy of such testimony. The mere fact that the witness was in a position to know facts does not imply that he would give such testimony as expected of him. While appellant’s Emmco Insurance Company, application for continuance relates that Mr. Gammon was its adjuster and its agent who conducted the company’s business with reference to the loss out of which this lawsuit arises; and that Mr. Gammon would testify to the dealings which he had with the appellee including, on behalf of Emmco, securing estimates to show the amount of loss payable under the policy in question and to demonstrate that the company did not prevent the repair of Mr. Burrows’ truck and, therefore, had no cause of action for loss of use of the truck, yet there were no allegations of facts to which the witness would actually testify as being beneficial to Emmco’s defense. In the absence of such specific allegations, the trial court’s refusal to delay trial on the cause was not error. Especially so, in absence of the tender by affidavit or otherwise of the witness’s testimony on motion for new trial. Davis v. National Acceptance Co., 233 S.W.2d 321 (Tex.Civ.App., Dallas, 1950, writ ref., n. r. e.); Sovereign Camp, W.O.W. v. Davis, 268 S.W. 523 (Tex.Civ.App., Galveston, 1924, writ ref.); Poe v. Hall, 241 S.W. 708 (Tex.Civ.App., Amarillo, 1922, n. w. h.); Hazelrigg v. Naranjo, 184 S.W. 316 (Tex.Civ.App., San Antonio, 1916, writ ref.) ; Wilson Finance Co. v. State of Texas, 342 S.W.2d 117 (Tex.Civ.App., Austin, 1960, n. w. h.). “The matter of granting a continuance rests within the sound discretion of the trial judge.” Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.Sup.Ct., 1964). The point of error as to the action of the court in overruling the application for continuance is overruled.

By the first three points of error here presented, it is contended that the trial court erred (1) “* * * in entering judgment for $400.00 as a reasonable charge for expenses incurred for the protection of the insured vehicle, because there were no pleadings to support the recovery of such expenditures”; (2) “ * * * in submitting Special Issues Nos. 10 and 11, because there were no pleadings to support the submission of either of said issues, and, additionally, there was no evidence to support the submission of Special Issue No. 10”; (3) “* * * in overruling defendants’ objections to plaintiff’s testimony wherein he stated that it cost $400.00 to tow the insured vehicle from Virginia to Texas, because there were no pleadings to support the admission of such evidence.”

In response to Special Issues Nos. 10 and 11, the jury found that it was necessary for the protection of the truck to have it towed to Dallas, Texas, from its location in Virginia and that a reasonable charge for such towing was $400.00.

Nowhere in appellee’s pleadings is it alleged that it was necessary for the protection of his truck to have it towed to Dallas, and nowhere in the pleadings did the ap-pellee allege the expenditure of or seek recovery for any amount spent for the protection of the truck. Provisions of the insurance policy sued upon do permit recovery of “protection expenses,” but such provisions were not specifically alleged or referred to in the pleadings, and the policy was not attached to the pleadings.

The appellee testified that the truck was towed from Virginia to Dallas at a cost of $400.00, and appellants promptly objected to this testimony on the ground that it was irrelevant and that there also were no pleadings to support its admission. These objections were overruled. Also, appellants objected to the submission of Special Issues Nos. 10 and 11 on the ground that they were not supported by any pleadings and these objections were likewise overruled.

In his third amended original petition, ap-pellee alleged that he was the assured under Emmco Insurance Company’s policy No. 8500727-20 covering his GMC truck. He then set out his claim for damages to his truck and prayed for specific and general damages.

During the trial, appellee offered the insurance policy into evidence and the court so admitted it without objection from appellants. The policy contained a provision which stated that any reasonable expenses incurred by the assured in protecting the insured vehicle shall be deemed incurred at the company’s request.

It is now established that in a case brought upon a policy of insurance, in which the pleadings identify the policy and in which the policy is admitted into evidence without objection, the case is tried on the issues raised by the terms and provisions of the policy itself. American National Ins. Co. v. Fox, 184 S.W.2d 937 (Tex.Civ.App., Fort Worth, 1944, err. ref., w. o. m.). It is not necessary to the statement of a cause of action on an insurance policy that all provisions thereof be alleged. Robert E. Lee Life Ins. Co. v. Sanderson, 127 S.W.2d 993 (Tex.Civ.App., Eastland, 1939, n. w. h.) ; First National Life Ins. Co. v. Virgil Vititow, 323 S.W.2d 313 (Tex.Civ.App., Texarkana, 1959, dism., w. o. j.). Appellants’ contention of the insufficiency of the pleadings in this respect is overruled.

However, to recover such expenses under the policy, they must be incurred to “protect” the truck. In this connection, the evidence reveals that the appellee contacted an agent of appellant and requested permission to bring the truck to Dallas and the agent said if that’s what he (appellee) wanted to do, and he would pay the expenses in doing so, that would be all right. While testifying on the trial of this case, the appellee in response to a question if he thought it “necessary for the protection of the truck” that it be brought back to Dallas answered:

“Yes, sir, because I couldn’t find out what was going on out there. 'It had been several weeks and I was needing the truck.”

The evidence shows that when plaintiff sent for the truck, it was already in the possession of Emmco Insurance Company at a GMC dealership in Richmond, Virginia.

To recover “protection expenses” under the policy, it must be shown that the insured vehicle is in some position from which it must be moved to “protect” it. The mere fact that appellee (1) could not find out about his truck and (2) that he was in need of it is not probative evidence that the truck was in such a position that it was necessary to tow it to Dallas in order to protect it. Even though there were proper pleadings to support the recovery of “protection expenses,” the submission of Special Issue No. 10 and the award of such expenses in the judgment were improper because there was no probative evidence that the tow charges were incurred to “protect” the truck, as required under the terms of the policy.

Appellants further contend that “The Trial Court erred in entering a declaratory judgment against Defendants, Associates Investment Company and Associates Discount Corporation, cancelling certain interest payments due said Defendants as holders of the installment note upon Plaintiff’s truck.”

The defendants (appellants), Associates Discount Corporation and Associates Investment Company, financed the truck and owned the installment note given by the ap-pellee for its purchase. Monthly installment payments on the note were paid directly to Associates.

In his third amended original petition, appellee sought a “declaratory judgment action” against the Associates suspending certain interest payments due under the installment note. The pleadings in support of this cause of action are as follows:

“Plaintiff also seeks the declaratory judgment action of the court declaring that the installment payments due Associates Discount Corporation or Associates Investment Company are suspended for the months of July, August, September, 1965, and for each month thereafter pending final determination of this dispute with the court. Plaintiff has no control over the insurance company or the finance company, but respectfully shows that they act in consort in handling this claim and the equities involved demand that the installment payments of approximately $600.00 per month be suspended during the time plaintiff is deprived of his truck-tractor. * * * ”

The trial court awarded the declaratory relief as prayed for. Appellants duly and timely preserved their point of error.

In their amended motion for new trial, the appellants complained of this portion of the judgment on the grounds (1) that declaratory relief was not available to rewrite a contract between the parties, and (2) because-there was no evidence or any jury findings upon which to base such relief.

Under the Texas Uniform Declaratory Judgment Act district courts are given the power to “construe” contracts and other instruments in writing, plus the power to “declare rights, status, and other legal relations”.

As we understand the pleadings, appellee is asking the court to “construe” the installment note and then to “declare rights” thereunder based upon alleged “consort” between Emmco and Associates “in handling this claim.” If this be the nature of the cause of action asserted, the decree of declaratory relief entered by the trial court is improper for any of the following reasons: (1) The installment note was not in evidence for the court to construe. The record does not reflect the introduction of the note in the evidence. It is impossible to “construe” an instrument and declare rights thereunder if the instrument to be construed is not in evidence. (2) From a careful examination of the entire record, we find no evidence that Emmco and Associates acted in consort. The only basis alleged for declaring the interest payments suspended was the contention that Emmco and Associates acted in “consort” in handling the claim. To “consort” means to act in union or in companionship. Saunders v. Kennedy, Sup., 154 N.Y.S.2d 523. There is no evidence in this record of any “union” or “companionship” between the appellants in the handling of appellee’s claim. (3) This is not a proper case for declaratory judgment. In addition to the failure of the evidence to support the award, the decree of declaratory relief was improper for at least two additional reasons. First, it must be recognized that the Uniform Declaratory Judgment Act is only remedial in nature. Cowan v. Cowan, 254 S.W.2d 862 (Tex.Civ.App., Amarillo, 1952, n. w. h.). The purpose of the statute, as evidenced by its own terms, is to declare existing rights, status, or other legal relations. The statute cannot be invoked as an affirmative ground of recovery to revise, alter, or reform such rights, status or legal relations. As applied to contracts, the purpose of declaratory relief is to obtain an interpretation of the contract, and a decree in such a case may provide “only for a determination of the purposes intended by the instrument, and not a modification of its terms.” 26 C.J.S. Declaratory Judgments § 162, p. 383. This point is illustrated in Baskind v. National Surety Corp., 376 Pa. 13, 101 A.2d 645 (Pa.Sup., 1954), where the plaintiff sought a declaratory judgment decreeing that he was insured under a policy issued to his daughter. The prayer for declaratory relief was denied, the court holding as follows:

“ * * * The amended petition, in effect, prays for reformation of the insurance contract * * * To reform would not be declaring a right, status, or other legal relation. It is only after reformation that rights of the parties could be declared in respect to the reformed contract. The Act contemplates a declaration of rights, status, or other legal relation of any person interested under an existing instrument, statute, ordinance, contract, or franchise. Nowhere are the courts given the authority to reform an instrument in a declaratory judgment proceeding. Such a proceeding is limited to the adjudication of rights under existing documents or legislation as then written.”

Second, declaratory relief is further inappropriate in this case because the only issue involved is purely a question of fact. Even though the installment note is not in evidence, appellee recognizes in his pleadings that the note obligates him to make certain interest payments. Associates does not dispute this fact, and there is no real dispute as to the existence or meaning of the contract. Therefore, the only thing to be resolved is the purely factual question of whether or not the defendants acted in “consort” so as to suspend the interest payments. If a factual dispute is the only issue to be resolved, a declaratory judgment is not the proper remedy. This point was made in Lincoln v. Harvey, 191 S.W.2d 764 (Tex.Civ.App., Dallas, 1945, n. w. h.), where the court held:

“Furthermore, it will be seen that the trial court had for determination the issue of fact as to whether the rental contracts were on a month-to-month basis, or for the duration of the war. Evidently such issue was purely a conflicting issue of fact, determinable only after judicial investigation in a regular trial by a court or jury. A declaratory judgment on purely fact questions cannot be the basis for action of the court on regular trial in determining the rights of the parties. ⅜ ⅝ ⅜ H

Appellants’ Point of Error No. 5 is sustained.

Appellants, by Points of Error Nos. 6, 7 and 8 complain that the trial court erred (1) “ * * * in overruling Defendants’ objections to Plaintiff’s testimony regarding the reasonable value of the insured vehicle in Virginia immediately before the collision, because the record reflects that such evidence was based upon hearsay and that Plaintiff was not qualified to give such testimony”; (2) “ * * * in overruling Defendants’ objections to Plaintiff’s testimony regarding the reasonable value of the insured vehicle in Virginia immediately after the collision, because voir dire examination revealed that Plaintiff was not qualified to give such testimony”; (3) “ * * * in overruling Defendants’ objections and exceptions to Special Issue No. 1, because there was no probative evidence to support the submission of said issue.”

Special Issue No. 1 inquired of the jury what the reasonable cash market value of the plaintiff’s truck was in the state of Virginia immediately prior to and immediately after the collision. The only testimony regarding the market value of the truck in Virginia came from appellee who, after stating that he was familiar with the value of his 1963 GMC truck, said that its value immediately before the collision was $13,-500.00, while its value immediately after the accident was $1,200.00.

The appellee testified that he had been in the trucking business 23 years; that during the time he had been in the trucking business, he had operated all kinds of trucks from gasoline to diesel; that he had bought and sold trucks and trailers all through the years that he had been in business; that he had always done his own negotiating and contracting and had always used his own judgment as to what was a fair price for a truck and whether he should buy it or not; that he had had occasion to study the value of trucks in this and other states and had kept himself abreast of the reasonable value of the kind of trucks he had owned and operated through the years; that he had been in and out of garages in Virginia many, many times and had watched trucks there being repaired, bought and sold. Ap-pellee further testified that in his experience in the past years, he has learned that the reasonable value of trucks like he has operated is the same in Virginia as it is in Rusk County, Texas, or in Dallas County; that the equipment he has used is standardized by the factory and they all use practically the same equipment; that he had operated GMC trucks through the years and this truck was a piece of equipment with which he was familiar; that he had been m Virginia a couple of weeks before the wreck; that he was in the market for a truck on that particular trip and had discussed the values of trucks with a Mr. Bolton in Virginia a short time before the accident, and that he had been in a dealer’s place in Richmond, Virginia a month before that and discussed the values of some 1963 diesels that they had there. He also testified that at the time of the wreck and at all times previous, he was familiar with the reasonable cash market value of trucks of this kind in the state of Virginia and that the reasonable cash market value of his truck in Virginia immediately before and immediately after the wreck was the same in Virginia as it was in Rusk County, Texas. On voir dire examination, the appellee testified that he did not know the condition of the truck immediately after the accident, except what he was told over the telephone. The first time he saw the truck after the accident was in Texas about a month after the accident.

In the case of Cortez v. Mascarro, 412 S.W.2d 342 (Tex.Civ.App., San Antonio, 1967, n. w. h.), the court stated:

“Where the issue relates to the value of chattels, the test determining competency is liberally applied, with few attempts to lay down detail tests, and this liberality is increased where the'witness is also the owner of the article in question. Thus, it has been suggested by an imminent authority that the owner of a chattel, ‘whether he is generally familiar with such values or not, ought certainly to be allowed to estimate its worth,’ leaving the weight of his testimony to be determined by the trier of fact. 3 Wigmore, Evidence, § 716, p. 48 (1940). * * *
“It is well settled that the qualification of a witness to testify on the question of value is primarily to be determined by the trial court, and the ruling of the trial judge will not be disturbed on appeal unless it is so clearly wrong as to show an abuse of discretion. Slack v. Magee Heirs, 252 S.W.2d 274 (Tex.Civ.App., 1952, aff’d., 152 Tex. 427, 258 S.W.2d 797). The fact that the asserted knowledge of the witness is based on information furnished him by others does not deprive his testimony of probative force. Webb v. Mitchell, 371 S.W.2d 754 (Tex.Civ.App., 1963, no writ).” See Calvert Fire Ins. Co. v. McClintic, 267 S.W.2d 568, (Tex.Civ.App., Waco, 1954, writ ref., n. r. e.) and Emmco Insurance Company v. Waters, 413 S.W.2d 484 (Tex.Civ.App., Tyler, 1967, writ ref., n. r. e.).

As stated in the Cortez case, in view of the liberal rules applied in cases of this nature, we cannot say that the trial court abused its discretion in receiving the appellee’s value testimony and in basing its judgment thereon. Appellants’ Points 6 and 7 are overruled.

We have examined this record in the light of the rule announced by our Supreme Court in In re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660, and find sufficient evidence to support the submission of Special Issue No. 1 to the jury. Accordingly, appellants’ Point of Error No. 8 must be overruled.

We have also considered appellants’ Point of Error No. 4 and, finding it without merit, the same is likewise overruled.

That part of the judgment awarding to appellee the sum of $400.00 as expenses for protection of the truck and granting to ap-pellee the relief he sought by way of a declaratory judgment is reversed and rendered. The judgment in all other respects is affirmed.

Judgment reversed and rendered in part and affirmed in part.

      . Article 252A-1, Vernon’s Ann.Tex.St,


author: FANNING, Justice.

text:
    S. M. CONNELL, Individually and d/b/a City Guaranty Co. and d/b/a Safeway Finance Company, Appellant, v. Victor ROSALES and wife, Faustina Rosales, Appellees.
    No. 7830.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 26, 1967.

      Whitley R. Sessions, Sessions, Sessions & Ackels, Dallas, for appellants.
    Fritz & Vinson, Dallas, for appellees.
   FANNING, Justice.

Appellee Victor Rosales, on behalf of himself and his wife, Faustina Rosales, brought suit against several defendants for usury damages and for actual and exemplary damages resulting from unreasonable collection efforts.

All of the defendants except appellant Connell and his two offices, City and Safeway, were dismissed prior to trial, and none of said other defendants were brought back into the case by either party.

A jury in response to special issues found that appellant’s companies were lenders rather than brokers, that plaintiff-appellee and his wife had paid appellant more money than they received, and that the appellant’s agents, servants and employees had made unreasonable collection contacts upon appellee and his wife. $5,500.00 was awarded by the jury as compensation for mental and emotional pain and physical illnesses suffered by plaintiff-appellee and his wife. The jury further found that appellant’s collectors were motivated by malice and awarded $4,000.00 as exemplary damages.

The jury further found that obligations to other parties were not the sole proximate cause of Victor and Faustina Rosales’ mental suffering and physical illness.

The trial court rendered judgment for appellee, (and after remittitur of appellee of $76.00 usury double damages) awarding appellee Victor Rosales $188.00 usury damages, $3,000.00 actual damages and $2,000.00 exemplary damages and awarded on behalf of appellee’s wife, Faustina Rosales, $80.00 usury damages, $2,500.00 actual damages and $2,000.00 exemplary damages. Appellant has appealed.

Under his first point appellant contends in effect that the trial court did not correctly compute the award of the usury penalty of $188.00 in favor of Victor Rosales and the usury penalty of $80.00 in favor of Faustina Rosales. In this connection appellant contends that the correct amounts of usury penalties to be awarded to Victor Rosales and Faustina Rosales were $136.00 and $40.00 respectively. We have examined the statement of facts and authorities cited by the parties in support of their respective contentions and we hold that the trial court did not err in awarding $188.00 to Victor Rosales and $80.00 to Faustina Rosales as double usury penalties. Appellant’s first point is overruled.

Appellant’s second and third points are as follows:

“POINT OF ERROR II.
“The trial court erred in awarding exemplary damages against Appellant when the evidence and the pleading of intentional and unreasonable acts or reckless disregard of Plaintiff’s health in subjecting Plaintiff to emotional distress was insufficient to support an affirmative finding of malice against Appellant.
“POINT OF ERROR III.
“The Trial Court erred in imputing the acts of employees at City Guaranty Company and Safeway Finance Company to Appellant, the owner thereof, in the absence of proof or a jury finding that such acts complained of were authorized or ratified as alleged in Plaintiff’s Petition paragraph 28.”

Appellee, in his pleadings, set out that the collectors making contacts upon appellee and his wife were in fact agents and employees of appellant and were acting within the scope of their employment, pleading in part as follows:

“From on or about July, 1958, until on or about December, 1959, every time Plaintiff was behind in the payment schedule established by Defendant, both before and after Plaintiff had repaid in full the principal borrowed, Defendant and Defendant’s agents and employees in the period involved herein, whose names are well known to the Defendant, made the hereinafter described contacts on behalf of, in the employment of, and with the expressed and implied authority of the Defendant herein. Defendant ratified each of the acts alleged herein, which each of the Defendant’s agents and employees committed, by various acts including accepting the retained benefits of such act after actual knowledge thereof, or after knowledge of facts sufficient to put Defendant reasonably on notice or inquiry thereof.”

Appellee further alleged in his pleading that the program of harassment engaged in by defendant-appellant “was an integral part of Defendant’s business. Without this harassment it would have been impossible for the Defendant to have collected so much usury from plaintiff or anyone else”.

In his pleading appellee set forth the names of agents of appellant dealing with and making collection efforts against him and his wife. He alleged them to be “Doris White at City Guaranty; Woody Downs and Mrs. Wilson at Safeway”.

Appellee clearly alleged the complained of and detailed unreasonable collection contacts as acts of agents, servants and employees of appellant, which appellee alleged were authorized and ratified by appellant-defendant. We find such pleadings to be sufficient to support a finding of malice to be imputed against appellant Connell.

Defendant-appellant did not object to any of the special issues submitted by the court. In special issue No. 2, the trial court specifically asked whether “City and/or Safeway, through their agents, servants and employees, in the period of time between July 7, 1958, and mid 1959 made unreasonable collection efforts upon Victor Rosales”. The court in special issue No. 6 further asked whether “the collection efforts, if any you have found in answer to Special Issue No. 2, were motivated by malice”.

Likewise in special issue No. 8 the court inquired concerning the collection efforts of City and/or Safeway and their agents, servants and employees. An issue similar to No. 6, and premised upon No. 8, was submitted as special issue No. 12, wherein, the court asked if the collection efforts in question were motivated by malice. In each of the four preceding special issues, the Court asked not whether the acts complained of were committed by Mr. Connell, the owner of City and Safeway, but whether the acts complained of were committed through the agents, servants and employees of City and/or Safeway. In each of the four incidences the jury found that through the agents, servants and employees of the defendants unreasonable collection efforts were committed, and that they were motivated by malice.

Appellant did not object to any of said issues or any portion of the court’s charge, nor did he request any issues as to whether the agents, servants or employees of defendant-appellant were acting outside the scope of their authority, nor did he request any special issue or issues as to whether he had ratified the acts of his agents, servants and employees.

It was undisputed that appellant owned the two loan companies, City and Safeway.

We have carefully examined the Statement of Facts, and we think it clearly shows that the unreasonable collection efforts found by the jury were of such a nature as to constitute a “gross indifference to the rights of others, as will amount to a wilful or wanton act”. The trial court also defined malice as “ill will, bad or evil motive”. Appellant did not object to the court’s definitions of malice. We think the jury’s findings that the agents, servants and employees of the defendant committed the unreasonable acts complained of with malice are amply and sufficiently supported by the record in this case.

W. N. White testified that he had formerly worked for S. M. Connell, appellant herein, as manager of W. N. White Loan Broker, from 1958 through 1960. He testified that S. M. Connell also owned City Guaranty at 315 North Ervay and Safeway Finance Company at 317 North Ervay, and that W. N. White Loans operated at 321 North Ervay, and that his wife, Mrs. White, managed City Guaranty during the period of time in question. Mr. White testified to the effect that the collection procedures were basically the same in the office he managed and in Connell’s loan offices, except for a few minor differences. He testified that collection letters were followed by contacts by telephone, and Mr. White confirmed the testimony and allegations of plaintiff-appellee when he testified that the agents and employees were under no particular limitation as to the number of telephone calls which they were permitted to make to a man’s job, that they would call every day if necessary, and if necessary they would talk to a man’s supervisor concerning the employee’s account. He further testified that even though they knew there were some companies who refused to give messages to the employees, nonetheless, appellant’s offices would attempt to leave a telephone number for a delinquent customer they might have attempted to reach at the customer’s place of employment. Mr. White further confirmed that he did know that some employers terminate their employees when these employees are contacted on the job. Mr. White further testified to the effect that there was no limitation on the number of cards and letters which the collectors were permitted to mail to a customer’s home or even to his place of employment, and that if necessary to contact the customer, they would mail letters and cards to that customer’s job, and in some instances special delivery letters, even though the customer instructed the loan company that he did not want any special delivery letters sent to his job, and that in some instances the loan companies would contact a customer, even if he told them he was sick. The daily telephone calls and collection letters and other harsh collection methods detailed by Rosales and his wife were clearly a part of the usual and customary loan company practice of appellant’s companies to harass Rosales and his wife into capitulating to appellant’s demands to pay usury.

The principal is liable for exemplary damages growing out of the acts of an agent when the principal authorized, participated in, or ratified the acts of the agent. 25 C.J.S. Damages § 125(4), p. 1153, Note 23; Wright v. E-Z Finance Company, Tex.Civ.App., 267 S.W.2d 602, wr. ref., n. r. e. (1954).

Such authorization, participation or ratification may be established by circumstantial evidence. Johnson v. Texas Gulf Coast Corporation, Tex.Civ.App., 359 S.W.2d 91 (1962).

Likewise, testimony that the alleged principal had adopted similar acts in transactions with others, at about the time of the transactions under consideration, is admissible, as bearing upon the issue of whether or not the agent had authority. 2 Tex.Jur. 2d, Agency, § 260, and authorities cited therein.

The principal’s presumed knowledge of the agent’s acts may be further established if the agents acted without protest or repudiation on the part of their principal, thus raising the inference that such acts were made by the agents with knowledge and concurrence of the principal. People’s Building, Loan & Savings Ass’n. v. Keller, 20 Tex.Civ.App. 616, 50 S.W. 183 (1899).

The record is clear that Connell accepted the benefits and proceeds derived from his agent’s acts in making unreasonable, harsh and wrongful collection methods, which circumstantial evidence (together with the evidence of Mr. White) indicates was the usual and customary pattern of the methods used by Connell’s loan companies. Mr. Connell did not take the witness stand to attempt to disown or repudiate any of the acts of his collectors and agents. In the absence of any evidence offered by Mr. Connell to show his lack of knowledge of his collectors’ activities, it is then presumed that he did have knowledge of his agents’ assumption of authority. 2 Tex.Jur. 2d, Agency, § 251, and authorities cited therein.

Appellant contends to the effect that in the absence of a jury finding that the acts of appellant’s collectors were authorized, ratified, or in some way participated in by Connell, that the malice found by the jury cannot be imputed to appellant Connell.

No party requested such an issue on the collectors’ authority, and appellant did not object to the failure of the court to submit such an issue. Under Rule 279, Texas Rules of Civil Procedure, omitted issues must be deemed as having been found in support of the judgment rendered by the trial court. The determination of such an issue by a jury was waived and under such circumstances the trial court decided the issue in accordance with the evidence and in support of its judgment. In this connection, see J. & M. Construction Company v. White, Tex.Civ.App., 371 S.W.2d 780, wr. ref., n. r. e. (1963).

We find that the evidence in this case was sufficient to support an implied finding by the trial court in support of its judgment to the effect that appellant Connell, failing to show his lack of knowledge of the acts of his agents, accepted the benefits of the acts of his agents, ratified their acts and authorized same. We think it is clear that the trial court’s judgment is supported by sufficient evidence of probative force of a series of unreasonable, wrongful and harsh acts of indifference to the welfare of plaintiff and his wife, and in the absence of any denial by Connell of knowledge of such acts of his collectors and agents, the record justifies the imputation of malice to appellant Connell.

Appellant’s second and third points are overruled.

Appellant by his fourth point contends to the effect that the trial court erred in awarding exemplary damages to Faustina Rosales when the only pleading was for a single sum of exemplary damages to be awarded to her husband, Victor Rosales.

Plaintiff alleged that defendant committed various unreasonable collection acts and contacts both on himself and his wife, Faustina, and stated that, “Plaintiff is entitled to exemplary damages in the sum of $8,000.00”. Appellee offered substantial evidence that such acts and contacts were committed upon both plaintiff and his wife. No objection was made to the admission of such evidence. Defendant-appellant requested no issues, nor did he object to any of the issues submitted by the trial court with respect to exemplary damages as to Faustina Rosales.

Damages awarded a wife for her injuries are community property in Texas. Garrett v. Reno Oil Company, Tex.Civ.App., 271 S.W.2d 764, wr. ref., n. r. e. (1954). The husband alone may sue for its recovery as such. Houston Gas & Fuel Company v. Spradlin, Tex.Civ.App., 55 S.W.2d 1086 (1932).

Appellant’s fourth point is deemed to be without merit and is overruled.

Appellant by his fifth point contends to the effect that the $5,500.00 actual damages awarded appellee and his wife should be reduced by four-fifths by reason of appellant having settled with four other former defendants. In this connection appellant relies upon the rule of law announced in Palestine Contractors, Inc. v. Perkins, Tex.Sup.Ct.1964, 386 S.W.2d 764.

We think Palestine is not applicable to the fact situation in the case at bar, but that the case of Petco Corp. v. Plummer, Tex.Civ.App., 392 S.W.2d 163, wr. ref., n. r. e. (1965) is applicable to the situation at bar.

In the case at bar appellee originally asserted a cause of action for usury and/or unreasonable collection efforts against several loan companies and their owners. Prior to the filing of his suit, plaintiff-ap-pellee had already compromised some claims against Atlantic and Southland and against City Finance and First Finance. Chesterfield, Signature, Texas and Time were sued as original defendants, along with appellant Connell and his two companies, Safeway and City. Several months prior to the trial plaintiff-appellee settled his claims against defendants Chesterfield, Signature and Time. They were dismissed from the suit.

The trial was only as to appellee and appellant and his companies. (Except as to appellant’s wife, who was later dismissed from the suit). None of the original defendants were brought back into the suit by appel- . lant, nor did he request any issue to the effect that any other party was a joint tort-feasor or was a proximate cause of any damages claimed by the appellee.

Appellant made no objection to the court’s charge which did not contain issues inquiring as to whether any other party or parties other than the appellant were tort-feasors. The verdict of the jury does not reflect that any other parties contributed to or were a proximate cause of any mental or emotional pain and physical illnesses suffered by appellee Rosales or his wife.

As above stated, the record shows that appellee compromised claims with various parties both before and after he filed his suit. (The nature of such claims was not shown; the basis or amounts of settlement were not shown). There was no showing that any of the four defendants (or other parties) settled with was a joint tortfeasor with appellant in any of the transactions for which appellant was sued for, nor was there any showing of proximate cause of any mental or emotional pain and physical illnesses suffered by plaintiff-appellee Rosales and his wife, and if so, which compromising parties these were, and such matters were simply not determined in any manner.

Only after verdict did appellant attempt to raise the question that there might have been other tortfeasors involved in the transactions sued upon.

In Petco, supra (392 S.W.2d 163), the plaintiff had been injured when escaping gas caused an explosion in a house where he was working. Plaintiff sued the builder, the gas company, the plumbing company and the electric company. Before trial, plaintiff settled his claim with the gas company, the plumbing company, and the electric company. Before trial the builder by way of cross-action brought the gas company back into the case. Both the gas company and the builder were found by the jury to be negligent, and both acts were found by the jury to be each a proximate cause of the explosion and ensuing damages to plaintiff.

In Petco the builder’s claim for contribution from the gas company, (which gas company was found by the jury to be a joint tortfeasor proximately causing the explosion), was granted by the trial court and thus diminished the plaintiff’s verdict by one-half. However, as to the other defendants who had not been brought back into the case and who had not been found to be joint tortfeasors, the trial court did not allow contribution. In affirming the judgment of the trial court, the Dallas Court of Civil Appeals, opinion by Justice Bateman, stated in Petco in part as follows:

“Appellant Petco argues in its second point of error that, since Plummer had settled with three other joint tortfeasors, the judgment against appellant should have been for only one-fourth of Plum-mer’s damages as found by the jury. * * *
“Appellant relies on the recent case of Palestine Contractors, Inc. v. Perkins, Tex.Sup.1964, 386 S.W.2d 764.
* * * * ⅜ ⅜
“However, we are not persuaded that the holding in Palestine Contractors, Inc. v. Perkins, supra, requires limiting the judgment against appellant in this case to one-fourth of the total damages found. We think the cases are easily distinguishable. In the Palestine Contractors case the other tortfeasor Conoway was a party to the suit, was definitely .being sued on the third party action for indemnity or contribution, and the jury convicted him of an act of negligence proximately causing the collision. Thus it was established beyond doubt that Cono-way was a joint tortfeasor. In the present case, however, neither L. & L. Electric Company nor Gene’s Plumbing Company was a party to the suit; no one was alleging that either of them had negligently caused the explosion; and Petco did not see fit to bring them back into the case, as it did Lone Star, and sought no indemnity or contribution against either of them in the trial court, and there was no finding of fact that either of them was guilty of any negligence proximately causing the explosion. As we read and understand Justice Greenhill’s scholarly opinion in Palestine Contractors, Inc. v. Perkins, supra, it does not require the award of damages to be diminished in proportion to the number of persons claimed by the appellant, for the first time in the appellate court, to have participated in the wrongdoing which caused the plaintiff’s injuries, but only in proportion to the number of parties to the suit who have been found to be tortfeasors as alleged.” (Emphasis added).
Appellants’ fifth point is overruled.

The judgment of the trial court is affirmed.