author: HUGHES, Justice.

text:
    SOUTH TEXAS LUMBER STORES, INC., Appellant, v. M. E. CAIN, Appellee.
    No. 11513.
    Court of Civil Appeals of Texas. Austin.
    June 7, 1967.

      Coffee, Ritter & Goldston, Jack Ritter, Jr., Austin, for appellant.
    Byrd, Davis, Eisenberg & Clark, Jack C. Eisenberg, Don L. Davis, Austin, for ap-pellee.
   HUGHES, Justice.

South Texas Lumber Stores, Inc., appellant, sued M. E. Cain on a sworn account. The parties announced ready for trial. When the introduction of evidence was concluded, appellant moved for judgment on the ground that appellee’s answer consisted only of an unsworn general denial. This motion was granted. Thereafter, ap-pellee filed a motion (a) to continue and permit him to file a trial amendment, or

(b) to grant an order permitting him to withdraw his announcement of ready, or

(c) to enter an order in arrest of judgment and grant a new trial.

This motion was granted to the extent that appellee was permitted to withdraw his announcement of ready and to amend his pleadings.

Thereafter, the case proceeded to trial and judgment was rendered that appellant take nothing by its suit.

At the request of appellant, the trial court made and filed findings of fact and conclusions of law from which we quote, in part:

“(1) It should be remembered that on September 7, 1966 when the trial was first commenced before the Court, the pleading of the defendant then being only a general denial, motion of the plaintiff to prevent the defendant from proving no promise to pay for the materials or a prior payment for some of those materials was sustained by the Court and it was announced at that time from the Bench that a judgment for the plaintiff would be entered. Subsequently and before the entry of the judgment on motion by the defendant, the defendant was allowed to file further pleadings and present his evidence. (2) The plaintiff failed to prove by a preponderance of the evidence that the defendant, M. E. Cain promised or agreed to pay for the material for which suit was brought. (3) The plaintiff failed to prove by a preponderance of the evidence that it relied on the credit of M. E. Cain or any representation by M. E. Cain for extension of credit to Eugene Williams. (4) Plaintiff extended credit to Eugene Williams because its employees thought that loan funds coming from the Bank of Austin would be available for payment of this account. (5) Eugene Williams was an independent contractor in the construction of the building in which these materials were used. There is no evidence that plaintiff thought it was extending credit to or was delivering these materials to an agent or employee of defendant Cain. (6) There is no written instrument wherein defendant Cain promised to pay the debt of Eugene Williams.”

Appellant has one point of error which is that the trial court abused his discretion in not granting it a judgment.

The converse of this is, of course, that the trial court abused his discretion in permitting appellee to withdraw his announcement of ready and to amend.

There is no question but that as matters stood before appellee was permitted to withdraw his announcement of ready and amend his pleadings, appellant was entitled, as a matter of law, to judgment upon its sworn account. Rule 185, Texas Rules of Civil Procedure. Nothing the court said or did indicates that it did not recognize this to be the law.

Our decision must turn upon the converse of the point made by appellant, stated above.

It is our opinion that abuse of discretion on the part of the Trial Judge in permitting appellee to withdraw his announcement of ready and amend his pleadings is not shown.

In the first place appellant has filed only a partial statement of facts. The proceedings and evidence therein shown relate only to the hearing held prior to the action of the court in permitting appellee to withdraw his announcement of ready and to amend his pleadings. We are, therefore, not apprised of the nature of all the evidence before the court when it rendered final judgment. Under these circumstances we are conclusively bound by the findings of the trial court to the effect that appellant had failed to prove that appellee incurred and owed the account sued on or that he had lawfully agreed to pay it.

It is within the discretion of the trial court to allow parties to withdraw their announcement of ready. McDonald, Texas Civil Practice, Sec. 11.18, p. 1002.

In Whitehead v. Foley, 28 Tex. 1, the court stated:

“It is insisted, however, that the disclaimer was presented as an amendment, and the court was forbidden by the statute from permitting this to be done after the parties had announced themselves ready for trial. The language of the statute (0. & W. Dig. art. 434), if technically construed, may admit of this construction. But it certainly never has been supposed that the district courts cannot permit parties, if necessary to accomplish the ends of justice, to withdraw an announcement at any time before a case is submitted to the jury. And if this be done, it is undeniable that the pleadings may then be amended; so also, after a verdict, a new trial may be granted for the mere purpose of permitting an amendment. Was it the purpose of the legislature to forbid the court doing directly what may thus be circuitously accomplished? It can hardly be thought that this is the true meaning or interpretation of the statute.”

See also Reiser v. Jennings, 143 S.W.2d 99, Tex.Civ.App., Amarillo, writ dismissed c. j.

So here, the trial court could have entered judgment as requested by appellant and then, on motion of appellee or on his own motion, could have set the judgment aside and granted a new trial, a nonappealable order, the validity of which could never be questioned. Ebaugh v. State, 342 S.W.2d 221, Tex.Civ.App., Austin, writ ref. n.r.e.

Appellant made no motion for continuance of this cause and it claims no surprise to have occurred during the proceedings below. It made no attempt to show legal harm as result of what the trial court did. The record does, of course, show that appellant was thwarted in its effort to obtain a judgment to which it was not entitled. This is not legal harm. It is legal justice.

The judgment of the trial court is affirmed.

Affirmed.

      I. We will not review this evidence. That it created doubt in the mind of the court as to the validity of appellant’s claim is shown by these remarks of the court: “THE COURT: Let the record show that this Court, in order to fully hear the dispute between these parties, would prefer at this time to allow the defendant to file a trial amendment, and continue with the hearing of the case; * *


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    Richard M. KING, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 7717.
    Court of Civil Appeals of Texas. Amarillo.
    May 15, 1967.
    Rehearing Denied June 19, 1967.

      Gordon, Gordon & Buzzard, Pampa, Ross N. Buzzard, Pampa, of counsel, for appellant.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, R. A. Wilson, Amarillo, of counsel, for appellee.
   CHAPMAN, Justice.

This is a workman’s compensation case. The parties will be referred to generally as in the court below. Richard M. King is the plaintiff-employee, Permian Corporation is the employer and Texas Employers’ Insurance Association is the defendant-carrier.

Following the filing of plaintiff’s first amended original petition and the taking of an exploratory deposition of plaintiff by defendant, the latter filed its motion for summary judgment. The motion was answered by plaintiff, with his affidavit attached thereto. Upon a hearing by the court of the stated motion, a judgment was summarily rendered for defendant. The judgment recites:

“ * * * there came on for hearing, pursuant to prior setting, the defendant’s motion for summary judgment founded on:
(a) the filed pleadings
(b) the plaintiff’s deposition, and the plaintiff’s reply thereto.”

As we understand the record the reply was to the motion for summary judgment, with the plaintiff’s affidavit attached thereto, and not a reply to the exploratory deposition. The sole ground upon which the judgment was summarily rendered was the trial court’s conclusion that plaintiff failed as a matter of law to raise a fact issue as to “good cause” for not filing his claim with the Industrial Accident Board within the six months from date of injury, required by Section 4a of Article 8307, Vernon’s Ann.T ex.Civ.St.

In his petition above mentioned plaintiff alleged, inter alia, that on or about the ninth day of December, 1964, while an employee of Permian Corporation, he sustained serious, painful and disabling personal injuries.

The summary judgment record shows plaintiff was a truck driver for Permian Corporation on Thursday, December 9, 1964, had worked his customary twelve-hour day from 7:00 a. m. to 7:00 p. m., had eaten his evening meal, and between 9:00 and 9:15 p. m. had gone to bed, tired. During the night he received a telephone call requiring him to take his large truck and go east of Spearman to help another truck out of the mud. He was on a dirt road, it was raining, and about five miles out of town he stuck his own truck four miles before he reached the point of his destination. While trying to work his truck out of the mud by backing and then going forward, and continuing that procedure, he became weak, dizzy, cold and sweaty, accompanied by some pain in his chest but not severe.

The next day he saw a Dr. Hackett in Spearman. After examining him, the doctor “ * * * gave me a little — some kind of little treatment there and told me he didn’t think it was nothing — wasn’t serious.” He continued to feel weak and dizzy, stayed home the remainder of the week, and on Monday went to Dr. Ashby in Pampa. That doctor took an electrocardiogram and told him he “ * * * had a little bit of heart ailment.” He placed him in the hospital for ten days, telling him at the time that he needed the rest. The doctor told his wife that he “ * * * had had a heart spasm, I believe is what — heart something like that.”

“Q. A heart spasm?
“A. Spasm or something similar to that and told me I needed rest.”

In January Dr. Ashby told him he had put in too many hours, should not have had to go back out the night he got stuck in the mud, that he should not over-exert any more because he had certain permanent damage to his heart.

At times the witness in the deposition questions appears to contradict himself and some of the issues were to some extent contradictory of his affidavit. This situation simply raises a fact question to be decided by the trier of the facts as to which part of the witness’s testimony is true. Benoit v. Wilson, 150 Tex. 273, 239 S.W. 2d 792 (1951) ; Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957); Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561 (1952); City of San Antonio v. Gonzales, 304 S.W.2d 429 (Tex.Civ.App.-San Antonio, 1956, writ ref’d n. r. e.). Considered in the most favorable light to him the record shows:

“Q. Yes. Now I want to know, did you — did Dr. Ashby tell you that you had sustained an injury on the job ?
“A. Well, no.
“Q. All right — now is that why you didn’t file a claim on compensation ?
“A. Well, yes. ”
“Q. Now, do you know what causes heart attacks, or did you know then what causes heart attacks?
"A. No.”

Dr. Ashby released plaintiff to go back to work and in February he was back on the same job, working twelve hours per day. Since he worked on a commission basis on his hauls of crude oil, he was also working at the same rate of pay, though not making as much money because he had quit rushing about his work. He had no physical pain, no “flare ups” and felt all right for the entire year.

The record shows plaintiff worked until January 29, 1966. At that time he was required to take a physical, which the company gives their employees every three years. After the physical he would go out to work and the company would not put him to work and would not tell him anything.

“Q. I see. Well, you suspected something was wrong, I take it?
“A. I knew there was something wrong because they kept stalling me off for about a week or ten days and didn’t tell me nothing.”

After this period he went to see his lawyer on February 10th or 11th. The claim to the Industrial Accident Board was then prepared on the 14th of February and received by the Board on the 17th.

The term “good cause” for not filing a claim for compensation within the six months period from date of injury required by Section 4a of Article 8307 is not defined in the statute. Because each late filing case must depend upon its own facts and the facts, as we have found them, have never been exactly the same in any two cases, precedent in decided cases is of little value except for general legal principles that are well established in this state, viz.

A good faith belief by the claimant that injuries are not serious, but are trivial, will constitute “good cause” for delaying the filing of a claim for compensation, but delay may not be excused unless the belief that the injury or condition was not serious would have been entertained by a reasonably prudent person in the same or similar circumstances. Texas Employers’ Ins. Ass’n v. Clark, 23 S.W.2d 405 (Tex.Civ.App.-Eastland, 1929, writ dism’d) ; Texas Employers’ Ins. Ass’n v. Roberts, 135 Tex. 123, 139 S.W.2d 80 (1940); Harkey v. Texas Employers’ Ins. Ass’n, 146 Tex. 504, 208 S.W.2d 919 (1948).

While ordinarily the question is one for the trier of the facts to determine, “ * * * the evidence in a particular case may lead to lack of diligence as the only reasonable conclusion, in which event the question is to be decided as a matter of law.” Texas Casualty Insurance Company v. Beasley, 391 S.W.2d 33 (Tex.1965).

While the Supreme Court of Texas in Texas Employers’ Ins. Ass’n v. Portley, 153 Tex. 62, 263 S.W.2d 247 (1953) said, “* * * a mere statement by an injured person that he did not regard his injuries as serious will not raise a fact issue when the facts themselves put the matter beyond the pale of reason or beyond belief by a prudent person,” we do not understand the court was extending the “reasonably prudent person in the same or similar circumstances” rule by the use of the phrase “beyond the pale of reason.” (Emphasis ours). By the use of the conjunction “or” between the two phrases, we believe the court was simply joining words and phrases in a coordinate construction and expressing a unity of their ideas. We shall so consider the expression. We mention it only because appellant states one of the controlling questions to be: “Under the facts of this case, is appellant’s claim that he did not know that he had sustained a reduction in earning capacity * * * beyond the pale of reason?”

“It [‘good cause’] may be determined against the claimant as a matter of law only when the evidence, construed most favorably for the claimant, admits no other reasonable conclusion.” Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948).

The pleading upon which the summary judgment was partly based alleges as a good cause for not filing a claim sooner that: “(a) he did not know he had sustained an injury; and (b) he did not know until he was discharged that he had sustained any reduction in wage earning capacity.”

In his affidavit made in reply to defendant’s motion for summary judgment plaintiff equated the events of the night of December 9, 1965, and his later medical advice that he had some permanent heart damage with illness rather than injury, “ * * * much in the same way as one would think of pneumonia being caused by overwork and exposure.” Thus, he was not conscious that he had sustained an injury. We are thus presented with the narrow question as to whether a mistake in the cause of disability is no less a “good cause” for failure to file a claim than a mistake as to the extent of disability.

In his affidavit plaintiff also explained his reason for not knowing until he was discharged that he had sustained any reduction in wage earning capacity. Dr. Ashby made him to understand he was to avoid over-exertion, “ * * * but I did not understand by the doctor’s statement that I would have permanent damage, that I would not be qualified to work. As a matter of fact, I did return to work in February of 1965, pursuant to my doctor’s instructions. In returning to work I went back on the same job for the same employer and for the same pay. The employer permitted me to work until the 9th day of January, 1966.”

In the test of what a reasonably prudent person would have considered under the same or similar circumstances we believe it is not unusual that a truck driver would have equated his experiences on the night of December 9, 1964, and subsequent events, with illness rather than injury. He had no sudden, sharp or excruciating pains in his chest; the doctor diagnosed his condition as a “heart spasm;” the doctor associated his physical condition to long hours of work and fatigue, as well as the activities of the night of December 9, 1964; he advised him to avoid long hours and fatigue ; and he had no pain during the year he worked and no “flare ups.”

A twenty-year old waitress fell while at work on November 29, 1937, and tore her uterus from its natural position, thus causing “flooding,” pain and suffering. As a ground for “good cause” in not filing her claim until about ten months later, she alleged she did not know until August 1938 that her fall was the cause of her injuries. The Fort Worth Court of Civil Appeals in Hayes v. Commercial Standard Ins. Co., 140 S.W.2d 250 (Tex.Civ.App.-Fort Worth, 1940) held: “We believe that the instant suit, which is shown to have arisen over internal injuries affecting the procreative organs of a young woman, about twenty years of age, unmarried and untutored in diseases peculiar to women, under the circumstances shown in this record, distinguishes her case from those relied upon by the appellee. * * * ”

The Supreme Court approved the “good cause” holding of the intermediate appellate court in a per curiam. Commercial Standard Ins. Co. v. Hayes, 135 Tex. 288, 142 S.W.2d 897 (1940).

Not being trained in medicine, we cannot say as a matter of law that plaintiff sustained an injury on the night of December 9, 1964. We have no information from the records as to what is entailed in a “heart spasm.” It appears as reasonable to us from the record that the termination of plaintiff’s job could have been due to an arteriosclerosis condition of a creeping nature found upon examination by the company doctors that would cause them to warn the company of arterial restrictions which could precipitate a heart attack in a truck driver. It is not difficult to envision the catastrophes that could result if a truck driver hauling 157 barrels of crude oil should suffer a disabling heart attack on a public road with traffic thereon. The record does not reveal what findings were made upon the physical examination which lead to termination of employment.

Our case does not fall within the factual patterns of the many comparatively recent cases by the Supreme Court of Texas which have held “good cause” was not shown as a matter of law, but more nearly approximates the pattern of Hayes v. Commercial Standard Ins. Co., supra.

We also find ourselves unable to agree with the trial court’s conclusion that: “If this were a case where plaintiff’s doctor had not advised him of the permanent heart damage and permitted him to return to work and plaintiff had not thereafter had symptoms of a heart condition, there would be a different question presented.”

What part of the heart was permanently damaged? Is the leaving of a scar permanent damage? What is the meaning of heart damage? Is any medical change from the normal damage? Where are the symptoms in the work record of plaintiff that showed a heart condition after February 1965 ? These questions are not answered in the record even though it shows that plaintiff voluntarily de-escalated his drive. The record shows he suffered no pains and had no symptoms of any heart attack from his resumption of work in February 1965 until his job was terminated a year later.

When we consider the rule that the question of “good cause” may be determined against the plaintiff as a matter of law only when the evidence, construed most favorably to the plaintiff admits no other reasonable conclusion, Hawkins, supra, we are compelled to the finding that there are fact questions which should be answered. Especially is this true when we consider that the Supreme Court of Texas has admonished us that “ * * * the general rule [is] that workmen’s compensation acts are to be liberally construed to effectuate their beneficial purpose * * Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926).

Plaintiff by brief has said: “If this case is affirmed, it will be the first case where the workman lost even though he had no physical symptoms at all.” We cannot vouch for that statement, but we do say we have found no Texas case law which contradicts the statement.

Believing there are fact issues that should be tried, the judgment- summarily rendered is reversed and remanded for a trial on the merits.

      . Texas Casualty Insurance Company v. Beasley, supra; Texas Employers Insurance Ass’n v. Hancox, 162 Tex. 565, 349 S.W.2d 102 (1961); Texas Employers’ Insurance Association v. Leathers, 395 S.W.2d 601 (Tex.1965); Texas Employers’ Insurance Association v. Brantley, 402 S.W.2d 340 (Tex.1966); Texas Employers’ Ins. Ass’n v. Portley, supra.


author: WALTER, Justice.

text:
    BERRYMAN PRODUCTS, INC., et al., Appellants, v. Linda Faye PIERSON et vir, Appellees.
    No. 4169.
    Court of Civil Appeals of Texas. Eastland.
    May 26, 1967.
    Rehearing Denied June 9,1967.
    Guittard, Henderson, Jones & Lewis, Victoria, Thomas S. Sligh, Jr., Dallas, for appellants.
    Robert J. Seerden, Victoria, for appellees.
   WALTER, Justice.

Linda Faye Pierson filed suit in Victoria County against Berryman Products, Inc. and Jack Lloyd for injuries to her right arm. Berryman and Lloyd filed pleas of privilege which were overruled.

Berryman has appealed. It contends there was no evidence that Jack Lloyd was acting in the course and scope of his employment so as to impute his negligence to the appellant.

Jack Lloyd testified substantially as follows: On March 19, 1964, I was employed as a salesman by Berryman Products, Inc. On such date I called on the Billingsly Auto Supply in Victoria. My duties with Berry-man were to call on supply dealers who were customers of Berryman and assist them in calling on their customers. We called on some customers and then went to the Dobbs House for lunch. Part of my job was to get new business for the company.

Linda Faye testified substantially as follows: On March 19, 1964, I was employed at the Dobbs House as a waitress and cook. On that date I was cleaning around the charcoal grill. Mr. Lloyd asked me to try a chemical he had. Mr. Lloyd looked the grill over and said so long as there is no open flame it will be all right to use the chemical. I poured some of the cleaning fluid on the grill and it ignited and the flames burned my right arm and shoulder.

Mr. Clyde W. Berryman testified substantially as follows: I am manager and Vice President and part owner of Berryman Products. On March 1964 Jack Lloyd was one of our salesmen. His duties were to call on our accounts and outlets and open up new jobbers. Mr. Berryman asked:

“Q. All right, so, in other words, Mr. Lloyd was employed by your company as a salesman, and in that capacity he was to call upon a list of approximately fifty customers that you gave him, and also, if he could develop additional leads and additional clientele for your products, this was also required of him. And, he was required to make a weekly report to you of who he had called upon and the results of his calls, is that correct?”
He answered:
“A. That is correct.”

We hold that the court was warranted in overruling the plea of privilege under exceptions 9a and 23 of Article 1995, Vernon’s Ann.Civ.St., and affirm the judgment.


author: PHILLIPS, Chief Justice.

text:
    Alfred S. TROUTMAN, Sr., Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 11512.
    Court of Civil Appeals of Texas. Austin.
    June 7, 1967.
    Rehearing Denied June 28, 1967.
    Sneed & Vine, J. P. Darrouzet, Austin, for appellant.
    Wallace Shropshire, County Atty., Dain P. Whitworth, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellant was convicted of a second offense of driving while intoxicated and the sentence was probated under Art. 42.12, Vernon’s Ann.Texas Code of Criminal Procedure.

Appellee made demand upon appellant for surrender of his driver’s license under the provisions of Vernon’s Ann.Tex.Rev.Civ. Stat. art. 6687b, consequently, appellant brought this suit in the trial court to stay appellee’s order. The trial court entered a temporary stay order, however on final hearing dissolved the stay order from which ruling appellant has perfected his appeal to this Court.

The sole question to be decided here, as stated in appellant’s point of error, is the propriety of the court in dissolving its stay order and reinstating appellee’s order demanding surrender of appellant’s driver’s license. Appellant contends that he had not received a final conviction for his second offense of driving while intoxicated under the provisions of Tex.Rev.Civ.Stat.Ann. art. 6687b, Sec. 24, and that his license could be suspended only upon final conviction.

Tex.Code Crim.P.Ann. art. 42.12, Sec. 2(b) defines probation as follows:

“ ‘Probation’ shall mean the release of a convicted defendant by a court under conditions imposed by the court for a specified period during which the imposition of sentence is suspended; * * * ”

Tex.Code Crim.P.Ann. art. 42.12, Sec. 3, Adult Probation and Parole, provides as follows:

“The judges of the courts of the State of Texas having original jurisdiction of criminal actions, when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public as well as the defendant will be subserved thereby, shall have the power, after conviction or a plea of guilty for any crime or offense, where the maximum punishment assessed against the defendant does not exceed ten years imprisonment, to suspend the imposition of the sentence and may place the defendant on probation or impose a fine applicable to the offense committed and also place the defendant on probation as hereinafter provided. Any such person placed on probation, whether in a trial by jury or before the court, shall be under the supervision of such court.”

Tex.Rev.Civ.Stat.Ann. art. 6687b, Sec. 25(c), provides as follows:

“For the purpose of this Act, the term ‘conviction’ shall mean a final conviction. Also, for the purpose of this Act, a forfeiture of bail or collateral deposited to secure a defendant’s appearance in court, which forfeiture has not been vacated, shall be equivalent to a conviction.
Provided, however, that in case of conviction for any of the offenses enumerated in paragraph (a) of Section 24 of this Act, and the sentence of the Court having been suspended as provided in the Statutes, such suspended sentence shall not mitigate against the suspension of the operator’s, commercial operator’s, or chauffeur’s license of the person convicted.”

Appellant further contends that the proviso in Section 25(c) of Article 6687b is applicable only to a suspended sentence and not to a probated sentence citing Ex parte Pittman, 157 Tex.Cr.R. 301, 248 S.W.2d 159 (1952). Pittman holds, inter alia, that once the court has imposed sentence under the Suspended Sentence Law it may not thereafter change and proceed under the Adult Probation and Parol Law. That the requisites necessary to a suspended sentence under the suspended sentence law have no application to the Adult Probation and Parol Law.

We hold that the suspending of a sentence imposed by the court authorized in the Adult Probation and Parol Law, Article 42.12, Sections 2b and 3, should be read in conjunction with the second paragraph of Section 25(c) of Article 6687b. Here we have the suspension of a driver’s license solely for the protection of the public using the highways. Such action is not penal in nature. Cooley v. Texas Dept, of Public Safety, 348 S.W.2d 267 (Tex.Civ.App. Fort Worth 1961, n. w. h.).

When the purpose of a statute is ascertained, the significance of the words used may be restricted or enlarged in order to effectuate that purpose and to give the statute the meaning which the lawmakers manifestly intended. Texas & N. O. R. Co. v. Railroad Commission et al., 145 Tex. 541, 200 S.W.2d 626 (1947).

We affirm the judgment of the trial court.

Affirmed.

      I. Vernon's Ann.C.C.P. art. 776a.

      . Tex.Rev.Civ.Stat.Ann. art. 781b.


author: O’QUINN, Justice.

text:
    GREAT AMERICAN INSURANCE COMPANY, Appellant, v. Carroll R. LANG d/b/a Lang’s Jewelry, Appellee.
    No. 11483.
    Court of Civil Appeals of Texas. Austin.
    May 31, 1967.
    Rehearing Denied June 28, 1967.

      Thompson, Coe, Cousins & Irons, Larry L. Gollaher, Dallas, for appellant.
    Wynne & Wynne, B. J. Wynne, Wills Point, for appellee.
   O’QUINN, Justice.

The Langs owned and operated a jewelry store in Wills Point. One night late in August, 1964, burglars broke into the store and stole jewelry and other property valued at between $4,000 and $5,000. The Langs reported the burglary to the Great American Insurance Company from whom they had purchased a “jewelers’ block policy” about a year before the burglary.

The insurance company, after an investigation, refused to pay the loss and denied liability under assertion the Langs had breached their warranty to keep sixty-five percent by value of the insured property, when the store was closed, in the store’s safe, which was described in the policy. The burglars did not open the safe, and the only property stolen by them consisted of items in the store found outside the safe.

The Langs brought suit on the policy claiming a loss of $6,000, the maximum limit of the policy. The insurance company pleaded in answer, among other defenses, that the Langs failed on the night of the burglary to have sixty-five percent by value of the insured property in the store safe, in violation of their warranty to maintain this percentage, when the store was closed, inside the safe. The case was tried to a jury, and the jury found in answer to special issues that the loss amounted to $4,368.-43 and that on the night of the burglary the Langs had sixty-five percent by value of their stock, “including other people’s goods,” in a locked safe.

At the close of all the evidence, the Great American Insurance Company moved for an instructed verdict which was denied by the court. Upon return of the jury’s verdict, the insurance company moved for judgment notwithstanding the verdict. The court denied the motion and entered judgment June 2, 1966, for the Langs in the amount of $4,368.43, with interest from November 15, 1964.

Great American Insurance Company excepted to award by the trial court of interest prior to judgment, and, without first moving for new trial, perfected appeal from the judgment, pursuant to Rule 301, Vernon’s Ann. Rules Civ.Proc.

Appellant assigns two points of error, contending (1) that the trial court should have rendered judgment for appellant non obstante veredicto because the evidence established as a matter of law that appel-lees breached the warranty and condition to keep sixty-five percent by value of the insured property locked in the store’s safe when the business was closed, and (2) that the trial court, notwithstanding the verdict, should have found for appellant because the evidence established that the safe warranty, condition, or representation breached by appellees was material as a matter of law. These assignments are related to appropriate parts of appellant’s motion for judgment non obstante veredicto.

The question is whether, as appellant contends, there is no evidence to support the jury’s finding, in answer to special issue No. 4, that on the night of the burglary appellees had, locked in their safe, sixty-five percent by value of all property insured under the policy. The policy covered not only the stock of merchandise in the store, but also customers’ property, such as watches being repaired and diamonds held as “layaways.”

It appears that on the day following the burglary Herman Tiller, an insurance adjuster acting for appellant, started working with the Langs at their store to determine the extent of the loss.

By using a known inventory prior to the burglary and adjusting it from records of sales and purchases, they arrived at an inventory of stock on hand the night of the burglary. An inventory of property on hand the day after the burglary was made, and the difference between’ the two inventories was taken to be the loss by burglary.

The results arrived at by Tiller and by the Langs differed less than $100. Tiller produced a figure of $7,897.10 for the inventory before the burglary, and the Langs found it to be $7,991.79. They agreed on a physical inventory of $3,458.67 after the burglary. Deducting this figure, Tiller found the loss to be $4,459.40, and the Langs found a loss of $4,533.12.

In making the inventories, the Langs kept a separate list of customers’ ¡property, all of which Leona Lang testified they kept in the safe. Tiller did not look into the safe himself. The contents of the safe were taken to Tiller at a counter about ten feet from the safe by Lang when Tiller asked what was in the safe. Tiller apparently made no inventory of the items in the safe belonging to customers, but confined his list to property of the Langs.

Leona Lang testified that they kept no customers’ items outside the safe. Even watches awaiting repair were locked up. On the night of the burglary there were 85 customers’ watches in the safe, which Carroll Lang testified had a reasonable market value of $3,400, or $40 each. Leona Lang testified that in addition to the 85 customers’ watches, the safe contained three layaway diamond rings worth $879, and the Langs’ important diamonds costing $50 or more, worth $1,373.89, a total in the safe of $5,652.89.

In this connection, on direct examination, Leona Lang testified as follows as to the contents of the safe on the night of the burglary:

“Q What was in the safe that night, if anything?
A You mean before — well, our important rings, every item that we had that cost over $50, our customers’ watches, and some layaway merchandise.
Q About how many watches in that safe that .night?
A Eighty-five.
Q Now, was there any customers’ layaway ?
A Yes, there were three rings.
Q Do you remember their value?
A Yes, I do.
Q What was their value?
A Well, the total value, was $879.00
Q And how many diamonds was in the safe?
A You mean of our own ?
Q Yes.
A I don’t believe I have that over here. It was the same — $1373.89.
Q Now, you made that?
A This is my writing.
Q You made that right after the robbery?
A Yes, sir.
Q You and Mr. Lang went over the customers’ watches and jewelry, or just over the jewelry, you and he together, after the burglary, you and Carroll ?
A We went over all of it, Carroll and I did.”

On cross examination, Leona Lang was asked whether she had “related * * *

everything that was in the safe on the day of the burglary,” and she answered, “I believe so.”

It was undisputed at the trial that the initial inventories taken by Tiller and the Langs did not include customers’ property, and that these values must be added to the first invenory to determine the value of all property in the store covered by the policy at the time of the burglary. The value of the three diamonds and the 85 watches belonging to customers was $4,279. When added to Tiller’s figure for the inventory before the burglary, the insured property was $12,176.10, and when added to the Langs’ figure, the total was $12,270.79.

The value of property in the safe the night of the burglary, as established by the testimony of the Langs, was $5,652.89. Thus it seems clear that on the night of the burglary the Langs had $6,617.90 by value outside the safe, or more than half the total insured property.

The warranty pleaded by appellant appeared in paragraph 18 of the proposal executed by Carroll R. Lang in applying for insurance. The proposal, when accepted by the company, was attached to the policy and became a part of the contract. Paragraph 18 is headed:

“18. Warranties as to Property Insured During Term of Insurance at All Times when premises are Closed:”

Under this heading calling for warranties, Lang’s proposal read:

“(2) The proportion by value of property on premises kept in other Locked Safes and Vaults will be * * * 65%
(3) The proportion by value of prop-perty on premises (including window display) out of Safes and Vaults will be * * * 35%.”

Paragraph 17 of the proposal, headed “17. Safes and Vaults,” described in subpara-graph “a,” calling for “full particulars of each safe or vault,” the following safe:

“Reliable Safe & Lock Company, Cov-ington, Ky. Width of door 5%" Serial # 2438L.”

Under other subparagraphs of paragraph 17 space was provided for description of electrical burglar alarm systems, time locks, tear gas systems, and other protective devices or methods, but none was shown by Lang in his proposal. The safe was the only protective device proposed by Lang.

The last paragraph of the proposal, immediately above the signature of Carroll R. Lang, reads:

“Signing this form does not bind the Proposer to complete the insurance, but this Proposal shall constitute a warranty should a policy be issued(Emphasis added.)

The policy in paragraph 1 provides, “In consideration of the premium above specified, and of the Proposal(s) and Declaration (s) dated the 10th day of September, 1963, attached hereto and made a part hereof and which is (are) hereby agreed to be the basis of this policy, and which the Assured hereby declares to be true as to each and every statement and particular contained therein, this company does insure Lang’s Jewelry * *

In paragraph 8 the policy provides under its “general conditions,” “It is a condition of this insurance that * * * (B) The Assured will maintain during the life of this policy, insofar as is within his or their control, watchmen and the protective devices as described in his or their proposal form or endorsements attached hereto.” (Emphasis added.)

Under Special Issue No. 4 the jury answered, “Yes,” to the question, “Do you find from a preponderance of the evidence that at the time of the loss, if any, the Plaintiffs had sixty-five percent (65%) by value of their stock on the premises, in-eluding other peoples’ goods, if any, in a locked safe or vault?”

The trial court also submitted five special issues, numbered 12 through 16, to be answered only if the'jury answered “No” to issue No. 4. These issues asked findings as to value of property inside and outside the safe, whether failure to keep sixty-five percent of the stock in the safe was material to the risk, whether this failure contributed to the burglary or loss, and whether the provision of the policy regarding sixty-five percent of stock in the safe was material to the risk. Since the jury answered No. 4 “Yes,” the issues 12 through 16 were not answered.

The record in this case is such that we are called upon to decide whether there was evidence to support the jury’s finding that the Langs had sixty-five percent of the insured property locked in their safe the night of the burglary. Stated conversely, the question is whether the evidence establishes conclusively that sixty-five percent of the insured property was not in the safe that night. Another approach is to decide whether there is a complete absence of evidence to support the jury’s finding on this point.

Whatever approach is made or however the question is treated, we have in this record the so-called “no evidence” point of error, which, as pointed out by Justice Calvert in 1960, if sustained, calls “for reversal of the trial court’s judgment and rendition of judgment for the appellant.” 38 Tex.L.Rev. 361, 362, (1960), “‘No Evidence’ and ‘Insufficient Evidence’ Points of Error,” Robert W. Calvert (Chief Justice, then Associate Justice, the Supreme Court of Texas). “In whatever language the point may be couched,” Justice Calvert wrote, “its essence is that there is an absence of proof of a vital fact and that the trial court erred in not rendering judgment for the appellant.” 38 Tex.L.Rev. 361, 362.

All of the proof as to value in this case was supplied essentially by the Langs. The inventory Tiller prepared was taken from records furnished him by the Langs from their store books and papers. The inconsequential difference of less than $100 between Tiller’s total and the Lang total obviously was traceable to the arithmetic of adding purchases and subtracting sales. The physical inventory they made together, based on value figures supplied by the Langs, was concurred in by both. The small difference in net loss between Lang and Tiller, Leona Lang testified, was due to the same minor difference found in the two inventories of property in the store before the burglary.

The vital proof needed to show how much property by value was in or out of the safe the night of the burglary lies in ascertaining the value of property known to be in the safe and untouched by the thieves. Tiller did not list or inventory the watches and diamonds in the safe belonging to customers. This proof was furnished exclusively by the Langs.

Asked about Tiller’s arrival at the store after the burglary, and subsequent taking of inventories, Leona Lang testified as follows:

“Q What did Mr. Tiller tell you?
A That he would like an inventory of the complete stock, of the purchases, of the last inventory until the date and—
Q Why did he tell you he wanted it?
A To arrive at our loss.
Q Okay. Did you proceed to give him all of the information that he wanted ?
A Yes.
Q Did you get your inventory down for the year?
A Yes.
Q What else did you give him?
A Well, he looked at all of our books, our purchases, and all of the sales slips, everything he asked for, I gave him.
Q And when you would give it to him, what would happen?
A He would write it down, what he wanted.
******
Q Is it true that you do actually most of the book work or accounting for the Lang Jewelry Store?
A Yes, sir.
Q Do you have your own figures, which would be something similar to Defendant’s Exhibit 3? [Tiller’s inventory]
A Yes.
Q Do those figures on Defendant’s Exhibit 3 coincide or are they fairly in line with what you determined yourself?
A Fairly well, yes.
Q Say, for example, the inventory prior to the burglary.
A Yes. It is what I have.
Q What is the figure that you have?
A $7991.79.
Q So that is just maybe $100—
A Yes.
Q And yours is $100 more than Defendant’s Exhibit 3 ?
A Yes.
Q And then is your statement on what you determined to have been taken approximately the same, $3,458.67?
A That was the inventory.
Q Do you have a loss figure?
A Yes: $4,533.12.
Q So again, maybe a hundred above?
A Yes.
Q That is the same one hundred ? That would be accounted for, would it not, by your beginning inventory being $100 higher?
A Yes, sir.
Q Do your figures take in everything that was taken on the premises?
A This figure does not cover the watches and diamonds that Mr. Tiller did not ask for.
Q Which figure ?
A That I have just quoted to you, that is our inventory, salable merchandise.
Q All right; so then, what is the $3500?
A Approximately $3400 and $879 for layaway diamonds, that is not in that figure.
Q Both of those are not, but the diamonds were for sale?
A In the figures.
Q Are included in that figure?
A Yes.
Q No, does this inventory include customers’ items outside of the safe, if there were any?
A I wouldn’t have any.
Q You don’t have any customers' items outside the safe?
A Yes, sir.
Q Is that true even before watches are worked on?
A Certainly.
Q Then that eighty-four or eighty-five customers’ watches, that is the sum total of all the watches on the premises at the time of the burglary, is that correct?
A
I believe so.”

Carroll Lang, testifying on the contents of the safe and the values of items found there, gave his evidence as follows:

“Q * * * is ⅛ your testimony regarding what was in the safe there was the $1,373 in diamonds, is that correct?
A That is what they said it was.
Q Who is ‘they?’
A Mr. Tiller.
Q And your wife?
A Whoever figured it up. They done the figuring. I didn’t do any of the figuring.
Q You didn’t have anything to do with that?
A I didn’t have anything to do with the figuring.
Q Is there any question in your mind that that figure is inaccurate?
A No.
Q Now, did you work up the figure on the watches yourself?
A On the watches?
Q On the watches that you testified there were 85 inside the safe?
A Yes.
Q Did you work up the figure that those 85 watches were worth $3400 ?
A Yes, sir.
***** *
Q You have some memory regarding layaway items?
A Yes.
Q Did you count or evaluate those?
A No.
Q Who did that?
A Oh, yes, I counted it when they found them, yes.
Q When you found them?
A Oh, when we went back into the safe later on.
Q Did you work up the figures on the value on those?
A Well, you didn’t have to work any figures on them. We had the figures on them.
Q How is that?
A Because we had them in a book, yes.
Q But you had to add them together? There were how many rings?
A Two sets, and then there was one solitaire.
Q All right; did you add together those prices and come up with $879 ?
A Yes, sir, that is the wholesale value of them.
⅜ ⅜ * * ‡ *
Q Do you recall testifying yesterday that 85 watches in your safe were worth $3400?
A Yes.
Q That comes to $40 apiece ?
A Yes.
Q How did you assess the values on them?
A Well, just tried to meet a happy medium.
Q Just a happy medium?
A Watches that have been — just got to meet a happy medium on them because they run anywhere from $25 to $100. You have got to have a medium somewhere there.”

It is uncontroverted that the safe contained only three properties. Besides the tray of diamonds belonging to the Langs, there were three diamond rings in layaway and 85 customers’ watches. Leona Lang supplied the value of $1,373.89 for the tray of diamonds from store books. Carroll Lang verified the value of $879 on the three layaway diamonds because he “had them in a book.” The only items on which the value was an estimate or appraisal were the 85 customers’ watches. The figure supplied by Carroll Lang, who had been in the jewelry business nineteen years, was $3,400, or $40 each.

Appellees argue that Carroll Lang’s testimony as to value of the watches was qualified by his statement that $3,400 was in the “neighborhood" of “fair market value” and that this was a “conservative estimate.” Later, as already quoted, he testified that the value of $40 each, making a value in all of $3,400 for 85 watches, was to meet a “happy medium” between a low of $25 for the cheapest and $100 for the best.

On the unlikely theory that the jury seized upon this testimony and sought to raise Lang’s appraisal as an experienced jeweler from $40 per watch to a mathematical “happy medium” of $62.50 per watch, the increase, when added to both the property in the safe and the total inventory, would place the property in the safe at $7,565.39, or 53.34 percent, and leaves it well short of sixty-five percent.

Returning to the figures produced by the Langs, and not contradicted by any other evidence, the total inventory before the burglary was $12,270.79, with only $5,552.89, or 46.06 percent, in value locked in the safe. To comply with the warranty of sixty-five percent, there should have been locked in the safe property having a value of $7,976.01. With $6,617.90 established as the value of property not in the safe when the thieves arrived, a finding by the jury that sixty-five percent was in the safe would require that the safe have in it property worth $12,289.55, which would be in excess of the undisputed total inventory of insured property.

Appellees take the position that the jury was not bound to accept any of the testimony as true, did not have to accept the figures given as to value, and could from the figures given deduct and construct their own conclusions and make their own calculations.

We cannot agree, under the facts of this case, that the jury may go as far as appel-lees suggest. The figures most favorable to support of the jury’s finding were arrived at from values supplied by the Langs from their own records, and all values, except the value of the 85 watches, were established by the store’s books. Neither the Langs-nor the insurance company sought to produce or prove any other than those values. For the jury to deviate from the known figures would be, not merely to reject the testimony, but to invent and substitute testimony, which the jury may not do.

The value of the 85 watches was established by the uncontradicted testimony of Carroll Lang at $3,400, or $40 each. But if the jury went above the mathematical “happy medium” of $62.50 for each of the 85 watches, and used any unit of value, not exceeding the top limit of $100 mentioned by Lang, the jury could not have found that the insured items in the safe by any calculation constituted as much as sixty-five percent of the total insured property.

Appellees contend that the only witnesses testifying to facts upon which the jury’s answer to issue No. 4 could be predicated were interested witnesses, and that their testimony in relation to value was that of experts and in places contradictory. We do not find anything in the record to show there was any dispute or contradiction as to value. Tiller, who attempted only to-give an over-all total of insured property, inventory on hand, and the loss calculated as the difference, took his values from the Langs and the records in their store. All evidence on value came from Carroll and Leona Lang, and they were in agreement between them.

The fact Lang was an expert, after nineteen years’ experience in the jewelry business, does not take away from validity of the values he placed on the 85 watches, but if anything should fortify his testimony. In any event, there were no conflicting theories and methods of calculation affording the jury a field in which to speculate. The outer limits were fixed by Lang, and the jury was bound by these limits in whatever calculations the jury made to arrive at a percentage of property in the safe.

While the jury is accorded extensive latitudé in seeking its answers, this authority does not license voyages into pure surmise, suspicion, or speculation. The jury’s journey must follow charts within the realm of reality, found in the facts made known by the evidence.

It is understandable that a jury, with commendable sympathy for a local merchant, may wish to aid him in his plight, and they may hold his testimony in higher regard than that of other witnesses. Yet in this case the testimony of the Langs, viewed in complete disregard of any other evidence, which they gave with laudable candor and forthrightness as to what items were in the safe and their values, makes it impossible for them to escape, even with the aid of the jury, from the plain fact that sixty-five percent in value of the insured property was not locked up in the safe when the thieves broke in and took away more than $4,300 in property lying outside the safe.

The holding of the court in Kerr v. State, Tex.Civ.App., Austin, 205 S.W. 474 (1918), rehearing denied Tex.Civ.App., 206 S.W. 363 (no writ), although there concerned with a jury finding in a land boundary suit, is in point in this lawsuit. In the Kerr case the evidence comprised 25 sets of field notes, 13 patents, 11 maps, 8 file wrappers from the land office, and a connecting run by a surveyor. The Court found that there was no contradiction in the testimony and that the verdict of the jury was “simply their deduction from the facts proven”. After making deductions of its own from the facts and figures, the Court concluded that the verdict of the jury was not supported by the evidence.

The court pointed out that not to disturb the verdict on appeal might be “ * * *

a convenient method whereby an appellate court may avoid the labor of investigating a voluminous and complicated statement of facts and the responsibility of making the proper deduction therefrom.”

After making its investigation, the court found that the deductions of the jury were not consistent with the facts, and the court said it was “not impressed with +he sacredness of such verdict.”

The court denied “ * * * any assumption of superior ability to say that the court with such testimony before it, in writing, and ample time to examine same, is in a better condition to make a proper deduction from such testimony than is a jury, especially as the members of appellate courts, both as practitioners at the bar and members of the court, must necessarily have had more or less experience in such cases, whereas the jurors have probably had no such previous experience.” 205 S.W. 474, 476, col. 2.

In the cause now before this Court it was shown by the uncontradicted testimony of the Langs what value of insured property was in the safe and what was out of the safe. The jury, from facts and figures proved by this testimony, made the deduction that sixty-five percent in value was locked up in the safe when the burglars broke into the store. This deduction simply will not stand up under the facts, and the verdict of the jury is therefore not supported by the evidence. Based on the figures given by the Langs, and not disputed by any other testimony, the inventory of $12,270.79 in insured property on the night of the burglary was maintained so that $6,617.90 in value, or 53.94 percent, was outside the safe and exposed to the thieves, while only $5,652.89, or 46.06 percent, was protected by being locked up in the safe. This means that the Langs missed compli-anee by 30 percent, which is a substantial default.

The finding of the jury must be within the range of the testimony and must be supported by the evidence. When this test is applied, we find that the jury’s answer to issue No. 4 is without support. There is a complete absence of evidence to support the answer given by the jury. The jury’s answer to Special Issue No. 4 has no force and effect and should be set aside. Panhandle & Santa Fe Ry. Co. v. Karr, Tex.Civ.App., Amarillo, 257 S.W.2d 486, affirmed in 153 Tex. 25, 262 S.W.2d 925 (1953); Kerr v. State, supra.

The warranty considered in this case, being a requirement of something to be done after the date of the policy, belongs to the class of provisions called “promissory warranties.” Home Insurance Co. v. Henderson, Tex.Civ.App., Texarkana, 263 S.W. 650 (no writ); 32 Tex.Jur.2d, Insurance, sec. 240, p. 404.

Appellees invoke Article 21.16, V.A.T.S. Insurance Code, dealing with misrepresentations by policyholders, and assert its applicability. This statute, first enacted in 1903, has been carried forward in each code revision, including the insurance code. (Acts 1903, 28th Leg., ch. 69, p. 94; Art. 4947, R.S. 1911; Art. 5043, R.S. 1925; Acts 1951, 52nd Leg., ch. 491).

This statute reads as follows:

“Any provision in any contract or policy of insurance issued or contracted for in this State which provides that the answers or statements made in the application for such contract or in the contract of insurance, if untrue or false, shall render the contract or policy void or voidable, shall be of no effect, and shall not constitute any defense to any suit brought upon such contract, unless it be shown upon the trial thereof that the matter or thing misrepresented was material to the risk or actually contributed to the contingency or event on which said policy became due and payable, and whether it was material and so contributed in any case shall be a question of fact to be determined by the court or jury trying such case.”

Promissory warranties are distinguished from statements, representations, and answers furnished in applying for insurance or contained in insurance contracts, and have been held not to be affected by the statute. Home Insurance Co. v. Henderson, supra. The doctrine of promissory warranties recognized by the courts prior to enactment of the statute was not overthrown by the legislature in 1903. Gross v. Colonial Assurance Co., Tex.Civ.App. (1909), 56 Tex.Civ.App. 627, 121 S.W. 517 (no writ).

The warranty language contained in the proposal appears twice, once in relating percentages to be kept in and out of the locked safe, and again immediately over the signature of Carroll R. Lang as the proposer and applicant for insurance. The proposal became a part of the policy, and the policy provides that maintenance of the safe, which was Lang’s only protective device, is a condition of the insurance.

By uncontradicted testimony at the trial it was shown that the premium paid for the insurance was based upon the proposal as to what percentage would be kept locked in the safe when the store was closed. The premium on property locked in the safe was shown to be one-half the premium for the same values not in the safe.

John Wascomb, a senior underwriter employed by appellant insurance company, testified that he had worked in the insurance business twenty-four years, about fifty percent of that time being as an underwriter, a duty imposing “the responsibility of either accepting or declining a risk.” He testified to familiarity with the “jewelers’ block policy” and with the mechanics of working up a proposal and issuing a policy on the proposal. With reference to the purpose of a proposal in rating a policy and computing premiums, Wascomb testified as follows:

“Q What purpose does the proposal have as far as rating is concerned, or as far as premium computation is concerned?
A As far as rating is concerned, it has a great deal to do with it, because you can have two jewelers with the same inventory and have two different premiums based upon the amounts in show windows, amounts outside and amounts in the safe at night.
Q Can you tell us what effect the provisions regarding what is in safes at night or whenever the premises are closed, what effect that has on the premium?
A The premium is based on the amount in the premises, and on the percentage of the safe at night. The premium is reduced by SO percent on fire and other perils.
Q Explain to the jury what you mean by that.
A The premium is based on the fire rate and also has a flat charge, based on a schedule, first $25,000 so much, and next in layers, but we have you charged for the other perils, excluding burglary.
Q Then what you are saying is that the premium is exactly half as much on what is inside the safe as what is outside the safe?
A That is correct.
Q Who establishes that rate that you are speaking of?
A The rate is actually established over a period of years on experience, but the original formula was set up and has been revised once, about five years ago. It has worked out very well.
Q Who compiled the statistics that is used to come up with this?
A The Inland-Marine Insurance Bureau, and they filed with the various states.
⅜ ⅜ ⅜ Jjc ‡ íjC
Q My question was, on this particular policy, could the Great American Insurance Company have charged a different premium than what appears on the policy itself?
A No, we could not have, because we have filed -those forms and rates with the State, and to use any other rate, our premium would have been discrimination.
******
Q As an underwriter for the Defendant in this case, and again I call your attention back to the provisions in Paragraph 18 of the proposals regarding the amount in safes, if there was less than 65 percent value of the insured property, plus other people’s, customer’s property in that particular safe, would you have accepted this risk at the premium charged ?
A No, we would not have.
Q Now, based upon figures which have been introduced here in evidence, would you be capable of computing what the premium would be ?
A Yes, from the proposal you can compute the premium.
Q All right; ■ do you have a pencil and paper ?
A I warn you it will take about 45 minutes. That is the reason we send them to the Bureau. We very seldom figure them in Dallas.
Q Can you say unequivocally if there was less than 65 percent by value, as I have already stated, that the premium would be higher?
A Yes, because we gave him credit for half of the rate for the property in the safe after night.”

It was shown at the trial that the “jewelers’ block policy” had its origin about 1920, and since that time the policy and the proposal upon which it is based have become more or less standard. The Inland-Marine Insurance Bureau, of which appellant is a member, prescribes contracts and proposals for such policies that are identical for all bureau members. The bureau forms for proposals and policies used in the jewelry business are accepted in Texas. Under the standardized system of issuing a “jewelers’ block policy,” the merchant executes a proposal which is submitted to the insurance company, and often reviewed by the bureau, for purposes of establishing a rate and approving issuance of the policy. When the rate is ascertained and the policy issued, the policy, with the proposal attached, is sent to the local agent for delivery to the insured. This procedure was followed when the policy in this case was issued to the Langs.

We do not find that any Texas court has construed provisions of the “jewelers’ block policy” or decided a question involving the promissory warranties or representations of such policies.

This type of policy has been construed by other jurisdictions in recent years. Where a representation had been made that the jeweler’s inventory had not exceeded $130,000 during the year previous to issuance of the policy, when in fact it had exceeded $150,000, a federal appellate court affirmed a judgment for the insurance company, after a robbery, upon showing that if the inventory figures had been accurate the policy would have been issued at a higher rate. Chalom & Son, Inc. v. St. Paul Fire & Marine Insurance Co., U.S.C.A., 2d Cir., 285 F.2d 909 (1961).

In that case the court found that New York statutes, applicable in the-case, provided that the misrepresentation by insured must be material to the extent that the insurer would not have made the contract knowing the true facts. It was found that insurer would not have issued the policy in this case at the premium actually charged. In addition, the court found that under New York law issuance of the policy at the premium actually charged, when in fact the inventory was higher than represented, would have been discrimination in violation of the insurance statutes. 285 F.2d 909, 911, col. 1.

In Phoenix Insurance Company v. Ross Jewelers, Inc., U.S.C.A., 5th Cir., 362 F.2d 985 (1966), the court found that the provision of a standard “jewelers’ block policy” that the assured would maintain the protective devices described in the proposal was a promissory warranty as well as a condition.

In that case one of the protective devices attached to the vault was an alarm system connected with a police station. The system was activated or deactivated by a key. On leaving the store at night, the manager activated the system, but left the key in the device. When burglars entered the store that night, they simply turned off the alarm with the key conveniently left in the mechanism, broke open the vault and stole more than $65,000 in jewelry. The court held there was a breach of the policy requiring maintenance of the alarm system, and that, in the absence of estoppel or waiver, the breach prevented recovery for the loss of jewelry taken from the vault.

In the case before this Court, the Langs did not maintain the safe, the only protective device they had, as they warranted to maintain it, for they did not have, locked up from thieves, at least sixty-five pércent of the insured property on their premises. Without this warranty, the insurance company would not have issued the policy, certainly not at the premium charged on the warranty that approximately two-thirds of the insured values would be locked up at night in the safe the insured described in his proposal.

We think under the facts of this case the provision regarding the safe was a promissory warranty and a condition. Appellees having breached the contract are not entitled to recover for their loss.

The fact that the burglars did not open the safe shows, at least with reference to this loss, that the safe, as a protective device, was a sound basis for determining the premium to be charged, as well as basis for decision of the company to issue or hot issue the policy. The safe and a warranty to maintain it, with sixty-five percent of value secured from thieves at night, had a direct bearing on acceptance of the risk at the premium charged. These are matters shown at the trial and are uncontradicted in the evidence. We believe that the company could not have deviated from the rate without violating the law against discrimination. Article 21.21, sec. 4(7), (8), V.A.T.S. Insurance Code. The fact that the only property stolen was that left out of the safe is evidence of materiality of the warranty or condition, since the breach directly contributed to the loss. The fácts are not in dispute, and we find that the promissory warranty and condition were material to the risk as a matter of law. Trinity Universal Insurance Co. v. Winter, Tex.Civ.App., El Paso, 67 S.W.2d 926 (writ dismd.); Automobile Owners’ Ins. Assn. v. Hennessy, Tex.Civ.App., Tex-arkana, 299 S.W. 281 (writ ref.).

We conclude that the trial court erred in rendering judgment for appellees and in not rendering judgment for appellant notwithstanding the verdict of the jury.

The judgment of the district court is reversed and judgment is rendered for appellant.

Reversed and rendered.


author: COLLINGS, Justice.

text:
    Dorothy Borchers PLOEGER, Guardian et al., Appellants, v. HUMBLE OIL AND REFINING COMPANY, Appellee.
    No. 4171.
    Court of Civil Appeals of Texas. Eastland.
    June 2, 1967.
    Rehearing Denied June 23, 1967.

      Miller, Vollentine & Miller, W. T. Miller, Gonzales, for appellants.
    James K. Wilson, Houston, for appellee.
   COLLINGS, Justice.

Dorothy Borchers Ploeger, as guardian for her minor children, and two of her children who have obtained their majority, brought suit against Humble Oil and Refining Company for damages alleged to have been sustained by them by reason of the defendant’s refusal to release three oil, gas and mineral leases which plaintiffs allege terminated for failure to properly pay delay rentals. Both parties moved for summary judgment, plaintiffs’ motion being limited to the question of defendant’s liability. Judgment was rendered for defendant, Humble, on its motion, and plaintiffs have appealed.

In appellants’ first and second points it is urged that the court erred in granting summary judgment for appellee, Humble, and in not rendering judgment for appellants because appellants contend the affidavits and other documents on file conclusively establish that the leases in question lapsed by reason of appellee’s failure to pay delay rentals to appellants and that appellee was thereafter liable for any damages resulting to appellants from its failure and refusal to release such leases after being requested to do so. Appellants assert in their third point that under the undisputed facts none of the grounds alleged in appellee’s motion for summary judgment, that is, the fact that the Borchers’ estate was not closed, estoppel, ratification and ambiguity, excuse appellee’s failure to timely pay delay rentals to appellants as the persons legally entitled thereto or support a summary judgment for appellee.

The material uncontroverted facts of the case are as follows:

On January 27, 1960, O. R. Borchers and wife Vivian Borchers as lessors executed the three oil, gas and mineral leases in question in favor of Humble Oil and Refining Company each being for a primary term of five years, covering certain properties in Jackson County. O. R. Borchers made a contract with Dorothy Borchers Ploeger by which he agreed to devise by last will and testament the property in question (together with other lands) to the children of Dorothy Borchers, Ploeger, both born and unborn. Thereafter on August 5, 1962, O. R. Borchers died vested with title to the lands covered by the leases in question, subject to said leases. The lands covered by said leases were devised by O. R. Borchers’ will to Dr. Charles L. Borchers and William Borchers, Jr., trustees for the children of Dorothy Borchers Ploeger, both born and unborn. Dorothy Borchers Ploeger, in behalf of her children, brought suit in the District Court of Lavaca County on the contract to will, naming her stepmother, Vivian Borchers, and the executor and trustees named in her father’s will as defendants. Qn March 8, 1963, the District Court of Lavaca County rendered judgment that appellants Dorothy Borchers, on behalf of her minor children, and her other children “do have and recover of and from the defendants Vivian Borchers, William Bor-chers and Charles L. Borchers, individually and as independent executors of the will and estate of O. R. Borchers, deceased, and as trustees under the trust created by and under the last will and testament of O. R. Borchers, deceased, the title and possession — ” to the mineral property in question subject to said leases. The judgment also provides as follows:

“The Court futher finds and accordingly adjudges that the trust created by and under the terms of Item Sixth of said Will is valid and that title to said trust estate has vested in the beneficiaries subject to the terms of said Will and this judgment and said Will and trust is not within the rule against perpetuities.”

The Lavaca County judgment also set out the powers and duties of the trustees in detail.

Thereafter Mrs. Ploeger by letter, advised appellee that title and possession of the mineral properties in question had passed to her children, furnishing appellee with letters of guardianship, a certified copy of the probate proceedings had on the estate of O. R. Borchers, and a certified copy of the Lavaca County judgment. After receipt of the Lavaca County judgment appellee, on advice of counsel, set up its records to show that delay rentals under the three leases should be paid to Dr. Charles L. Borchers and William H. Borchers as independent executors and trustees of the estate of O. R. Borchers, deceased.

It has been stipulated that the leases in question were in full force and effect from the date of delivery through January 27, 1964, the date the delay rental payments in question were to be made under the terms of each of said leases. No drilling operations were being conducted by Humble which would obviate the necessity of such delay rental payments if such leases were to be maintained.

It has also been stipulated that delay rental payments to cover the period from January 27, 1964, to January 27, 1965, were made by Humble under each of the three leases to the credit of Dr. Charles L. Borchers and William H. Borchers, independent executors and trustees of the Estate of O. R. Borchers, deceased, in the Yoakum National Bank, Yoakum, Texas (the depository bank named in each of the three leases in question) by three checks each dated January 9, 1964, each of which checks were endorsed by Yoakum National Bank, Yoakum, Texas on January 11, 1964, and each of which was promptly transmitted by it through banking channels where each was duly honored and paid upon presentment on January 13, 1964.

Each of the leases contained the .following provisions:

“The rights of either party hereunder may be assigned in whole or in part, and the provisions hereof shall extend to their heirs, successors and assigns; but no change or division in ownership of the land, rentals, or royalties, however accomplished, shall operate to enlarge the obligations or diminish the rights of lessee; and no change or division in such ownership shall be binding on lessee until thirty (30) days after lessee shall have been furnished by registered U.S. Mail at lessee’s principal place of business with a certified copy of recorded instrument or instruments evidencing same.—
In the event of the death of any person entitled to rentals hereunder, lessee may pay or tender such rentals to the credit of the deceased or the estate of the deceased until such time as lessee is furnished with proper evidence of the appointment and qualification of an executor or administrator of the estate, or if there be none, then until lessee is furnished with evidence satisfactory to it as to the heirs or devisees of the deceased and that all debts of the estate have been paid.”

Appellants acquire their interest in the lands in question through the estate of O. R. Borchers, deceased, and the Lavaca County judgment. The estate of O. R. Borchers, deceased, at least until May 25, 1966, was still open and had not, as of that time, been closed, although on such date application to close said estate was filed in Lavaca County. No proof that all debts of the estate of O. R. Borchers, deceased, had been paid was furnished to Humble prior to the January 27, 1964 rental date, nor could such information have been furnished because the inheritance taxes for the estate of O. R. Borchers in the amount of $14,978 were not paid until May 10, 1965.

Appellants were in effect advised by a letter of Humble dated October 11, 1963 that Humble was going to pay the January 27, 1964, delay rentals under the leases to the estate of O. R. Borchers, deceased and appellants never advised appellee prior to such payment or prior to January 27, 1964, (the delay rental date in question) that they would take issue with such a payment. After the delay rentals had been paid as aforesaid and after the delay rental date Mrs. Ploeger, through her attorney, advised appellee that delay rentals had not been timely paid, and by letters dated respectively February 12, 1964 and May 21, 1964, requested releases of the leases in question. The second letter advised appellee of an opportunity to lease said property for a substantial bonus and advised appellee that it would be held liable for resulting damages if appellee did not furnish releases. Humble by letter dated June 9, 1964 advised that while it disagreed with appellants’ position that the rentals had been improperly paid, nevertheless, it enclosed three (3) additional delay rental checks representing an over-payment of such delay rentals, stating that such payment was made in keeping with appellee’s policy “of maintaining good relations” with their lessors. Although the checks were not cashed, appellants, through their attorneys, retained possession of each of said checks until May 31, 1966, the date of the taking of Dorothy Borchers Ploeger’s deposition, at which time appellants’ attorney attempted to return same to Humble’s attorney which tender was refused. On December 18,1964, Humble released the .three (3) leases in question, said release having been filed for record in Jackson County, Texas on December 23, 1964.

Appellants urge that the Lavaca County judgment vested title to the leases in question in them free of the trust; that they and they alone were entitled to receive delay rental payments,' and that it is undisputed that Humble did not timely make such rental payments to them. Appellants contend that, therefore, the leases lapsed and the failure and refusal of Humble to release said leases made them liable to appellants for the damages occasioned by such refusal. Humble contends that the Lavaca County judgment vests beneficial title in appellants, but vests legal title in the trustees, to whom delay rental payments were properly made. In reply to appellants’ points Humble asserts that the court did not err in granting its motion for summary judgment and denying plaintiffs’ motion therefor because the undisputed facts establish as a matter of law that the three (3) oil, gas and mineral leases were maintained in force (until released by Humble) by timely and proper delay rental payments made by Humble, or that appellants, because of their conduct and the conduct of their legal representatives, should not now be heard to say the three (3) leases terminated prior to the time they were released by Humble, or that the judgment furnished to Humble (which plaintiffs say required that delay rental payments thereafter made may be made only to them) was an ambiguous instrument, and that an oil, gas and mineral lessee is not required to construe an ambiguous instrument, to which it is not a party, at its peril.

The Lavaca County judgment did provide that appellants, plaintiffs therein, recover from the trustees and executors under the will of O. R. Bor-chers, deceased, the title and possession of the property in question. However, the judgment also found and provided that: “ — the trust created by and under the terms of — said will is valid and that title to said trust estate has vested in the beneficiaries subject to the terms of said will — .” Humble construed the judgment as establishing a testamentary trust, and that appellants’ title was a beneficial title with legal title vested in the trustees, and paid the delay rentals to the executors and trustees of the estate. The judgment, in our opinion, must be considered as ambiguous in the respect indicated. In such cases it is held that a lessee’s obligation under a lease should not be increased by being required to construe an ambiguous instrument at its peril. Humble Oil and Refining Company v. Harrison, 146 Tex. 216, 205 S.W.2d 355 (1947). It was also held in the Harrison case that where rental payments are timely made in reliance upon such a construction of an ambiguous instrument and the lessor fails to notify the lessee before the rental due date that the payment was objectionable, the lessee is estopped to assert that the lease is terminated. We hold under the facts of this case that appellants are estopped to assert termination of the leases involved.

Regardless of the effect of the Lavaca County court judgment concerning the legal title to the leases in question the estate of O. R. Borcher, deceased, was, at all times material, still being administered in the Probate Court and it was subject to the debts of the testator and the estate. The District Court judgment did not have the effect of removing the properties in question from such administration. V.A. T.S. Probate Code, Section 37; Time Securities v. West, 324 S.W.2d 583 (CCA 1959, N.R.E.); Casey v. Kelley, 185 S.W.2d 492 (CCA 1945, writ ref.); O’Neil v. Norton, 29 S.W.2d 1060 (Tex.Com.App., 1930); Milner v. Whatley, 282 S.W.2d 903 (CCA 1955, N.R.E.) ; Redditt v. Quinn, 215 S.W.2d 367, (CCA, 1948, N.R.E.). There was no proof of payment of the debts of the estate and advice to Humble of such payment prior to the rental payment date of January 27, 1964. Timely and proper payments of delay rentals were made to the trustee and executors of the estate. Under the lease contracts in question and the facts shown Humble was entitled to maintain the leases in effect by such rental payments to the trustees and executors of the Borchers estate.

Appellants’ points are overruled. The judgment is affirmed.


author: RENFRO, Justice.

text:
    REPUBLIC INSURANCE COMPANY, Appellant, v. STATE FARM INSURANCE COMPANY et al., Appellees.
    No. 16837.
    Court of Civil Appeals of Texas. Fort Worth.
    June 2, 1967.
    Rehearing Denied June 30, 1967.

      Crumley, Rouer, Murphy & Shrull, R. E. Rouer and J. Roy Hudspeth, Fort Worth, for appellant.
    Brown, Herman, Scott, Young & Dean, and Richard E. Miles, Fort Worth, for ap-pellees.
   OPINION

RENFRO, Justice.

Appeal from a summary judgment.

The Republic Insurance Company instituted suit for declaratory judgment that it had no coverage in effect on a 1953 Chevrolet operated by Darrell Wayne Fulton on May 23, 1965, and declaring that it had no duty under its policy to defend Darrell Wayne Fulton in any lawsuits based on or arising out of a collision which occurred on May 23, 1965.

Defendants were State Farm Insurance Company, which insured Darrell Wayne Fulton’s parents; Darrell Wayne Fulton; Robert George Brooks and Florence Brooks, occupants of the car involved in a collision with Fulton; and Paul and Geneva Dietiker, who carried a liability policy with Republic Insurance Company.

Motion for summary judgment was filed by Fulton and State Farm Insurance Company.

Republic also filed motion for summary judgment.

Summary judgment, based on pleadings, depositions and affidavits, was rendered by the court against plaintiff, Republic Insurance Company. The judgment decreed that plaintiff, under its insurance policy, had coverage on the 1953 Chevrolet owned by the Dietikers, involved in the collision, while driven by Fulton, and it had the duty to defend Fulton and the Dietikers in any lawsuit arising out of the May 23, 1965 collision.

Plaintiff appealed on the ground that a fact issue arose as to whether the Dietikers insured all owned automobiles with plaintiff, and the court erred in declaring that plaintiff’s company had coverage in effect on the automobile in question.

As of the date of the collision the Dietikers owned a 1960 Ford insured by plaintiff. Early in 1965 they bought a 1954 Ford. The 1953 Chevrolet was bought by the Dietikers a week before the collision between it and the Brooks automobile.

The gist of the appeal is whether the 1954 Ford was an automobile as contemplated by the following provisions of the Dietikers’ policy issued to them by plaintiff : “ * * * ‘owned automobile’ means * * * (c) a private passenger, farm or utility automobile ownership of which is acquired by the named insured during the policy period, provided (1) it replaces an owned automobile as defined in (a) above, or (2) the company insures all private passenger, farm and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company during the policy period or within 30 days after the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile.

* * *

It is the position of plaintiff that Dieti-Icer did not have all owned automobiles insured with Republic at the time he acquired ownership of the 1953 Chevrolet, and, therefore, since no insurance was purchased on the 1953 Chevrolet it was not an insured or owned automobile at the time of the collision; that at the time of the acquisition of the 1953 Chevrolet Dieti-ker owned and had valid title to a 1954 Ford which was not insured by plaintiff.

It is the position of appellees, State Farm and Fulton, that the 1954 Ford was “junk” and therefore not an automobile within the meaning of the heretofore quoted policy provision.

On June 6, 1964, Republic issued its family combination automobile policy No. ACF 1-385114 to Mrs. Dietiker. At that time the insured automobile was a 1957 Ford. On November 2, 1964, Dietiker traded the 1957 Ford in on a 1960 Ford, and on the same date a substitution of automobile endorsement form was issued showing the 1960 Ford substituted for the 1957 Ford.

The policy was issued for one year beginning June 6, 1964.

In January, 1965, Dietiker bought a 1954 Ford from Fulton and towed it to his house.

On May 17, 1965, Mrs. Dietiker bought a 1953 Chevrolet. Six days later Fulton, with Mrs. Dietiker’s permission, was driving the 1953 Chevrolet when the unfortunate accident occurred. Since the accident happened only six days after she acquired the 1953 Chevrolet she had not notified the insurance company of its acquisition, but did notify the issuing company on the date of the accident.

By deposition Mrs. Dietiker testified: Darrell Wayne Fulton, age 16, is her brother; she moved to Fort Worth from Clifton but continued to give Aars and Dahl of Clifton her insurance; she and her husband bought a 1957 Ford from her father, and later traded it in on a 1960 Ford; they bought the 1954 Ford in January, 1965; her husband wanted to “fix it up” for her; her husband drove it from the used car lot to the garage; he never used it; she never used it; it did not have any brakes; husband sprayed a little paint on it; the 1954 Ford sat in yard all the time they had it, it was never used; it was never in the street; it was on blocks; it had bad fuel pump and generator; when they moved they pulled in the 1954 Ford; at the new residence they pushed it into the garage; bought the 1954 Ford with intention of fixing it up and using it; on May 17, 1965, six days before the collision, she - bought the 1953 Chevrolet; it was in good running condition; she loaned it to her brother; she paid $95.00 for the ' 1954 Ford; the car dealer wrote on the receipt, “sold as is”; it was not used from January through May of 1965; it was never in “drivable condition” after it reached their yard; they never got a license for it; it was rusted and faded and looked like a junk automobile; they sold the 1954 Ford to a junk and salvage dealer for $25.00 or $30.00; the dealer had to drag it away; they never, while they had it, even thought of insuring it.

After the 1953 Chevrolet was demolished in the collision she called Aars and Dahl and was told, “I’m sure you’re covered. * * Í)

The Dietikers never had the 1954 Ford Inspected; they did not intend for the 1954 Ford to be a replacement for the 1960 Ford, and did not intend for the 1953 Chevrolet to be a replacement for the 1954 Ford.

Mr. Dietiker testified by deposition: he bought the 1953 Chevrolet for his brother-in-law but title was in his name; he bought the 1954 Ford in January, 1965, after he bought the 1960 Ford and before he bought the 1953 Chevrolet; paid $90.00 for the 1954 Ford; he signed for the 1954 Ford and Darrell was going to buy it from him, but it would never run so Darrell decided he •did not want it; he towed it home from Darrell’s house; he never got it to run; it was pretty well rusted out; it did not have any brakes, the engine would not run, it had a bad roar in the rear end; the generator was bad; witness towed the 1954 Ford to his yard and just left it there, never moved it; when he moved to another house he towed the 1954 Ford; that was before the 1953 Chevrolet was in the accident; said the witness, “ * * * I’m a shade tree mechanic just like the biggest part of the people in my income, they have to fix their own cars half the time”; he looked ■under the hood, tried to start the car and it would not run; the following questions and answers were made:

“Q. What else did you do besides check to see if it was getting fuel and check to see if it was getting any sparks ?
“A. That was it.
“Q. Was it getting any sparks?
“A. Yes, sir.
“Q. It was getting sparks all right?
“A. Yes, sir.
“Q. Was it getting any fuel ?
“A. No, it wasn’t getting any fuel.
“Q. It wasn’t getting any fuel. All right. Then when you established that it wasn’t getting any fuel was there anything else that you discovered?
“A. No, sir, I don’t think so.
“Q. So all that was the matter with it, as far as you know, that you discovered, is it wasn’t getting any fuel ?
“A. Well, it wouldn’t run.
“Q. Well, if it’s not getting any fuel it won’t run?
“A. That’s right.
“Q. But that’s all that you discovered was wrong with it ?
“A. Why, sure.
“Q. Did you ever have a car that didn’t get fuel before ?
“A. Sure have.
“Q. What did you do about that?
“A. Well, you either put a new fuel pump on or find out. You might have lines choked up, or several things wrong.
“Q. Did you ever check the fuel pump on this car ?
“A. Never took it off.
“Q. Do you know how to check a fuel pump?
“A. Sure do.
“Q. Do you know how to check a gas line?
“A. Sure. ■
“Q. Well, checking the fuel pump is not too difficult, as I understand it, Mr. Dietiker. You never unscrewed that little nose that goes to it and had her turn the car over?
“A. Never took it off.”

He “aired” up the tires when he towed it to his new residence; it would have to have a brake job before it could be driven on the highway; when it was being towed the rear end made a racket, “I called it a howl. It was awful bad. * * * ” He sold it for $25.00 or $30.00 to get it off the place; in the new place he kept the car in a garage; the buyer towed it off; “1954 Ford junker” pretty well described the 1954 Ford; originally he paid $90.00 for it; it was pretty well rusted out at that time; he cotild never get it started, it never did run; shortly after Dietiker obtained the 1954 Ford he decided he would not attempt to repair it because it was in such bad shape it would not pay him to fix it up; it was just a “junk” automobile; the man who bought it intended to “junk” it out; they sold the Ford before the accident to the 1953 Chevrolet and had collected some of the purchase price.

Appellees also made an affidavit by Die-tiker a part of the motion for summary judgment. In so far as the condition of the 1954 Ford is concerned the affidavit was substantially the same as the deposition.

The following affidavit by Darrell Wayne Fulton was made a part of the motion: “My name is Darrell Wayne Fulton. I reside in Fort Worth, Tarrant County, Texas. I am 17 years of age. In the early part of the year 1965, I think January, I got a 1954 Ford car from Bowden’s car lot. I don’t know for sure if it was put in my name or in my brother-in-law’s name. My brother-in-law is Paul Dietiker. I don’t know just how long I had the car, it wasn’t very long though. I only made one or two payments. I think the payments were $10.00 a week. When I got the car it would just barely run. After two or three weeks the engine just quit and it never would run again. When the car quit running I just parked it. I never did get any tags for it. After Paul took it over to his house, it never did run again. I don’t think it was ever driven again after that.. Besides the engine not working, the brakes were shot and it had a loud noise in the rear end. This old 1954 Ford was just an old junk car and we didn’t pay but about $90.00 for it. Paul never did get around to doing any repairs on the car. He finally sold it for a few dollars to some boy, I don’t know what the boy’s name was.”

The depositions of the Dietikers and the affidavits of Dietiker and Fulton constituted all the evidence before the court.

All three were interested witnesses.

In determining the question of whether or not material issues of fact are raised on a motion for summary judgment, the court must view all the evidence in the light most favorable to the party against whom summary judgment is sought, and must indulge in favor of such party every intendment reasonably deducible from the evidence. Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (Tex. Sup., 1952).

In Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76 (1959), in a summary judgment proceeding, the Court, referring to a deposition, said: “At best it simply raises a question of fact on that issue, and summary judgment may not properly be granted even on the testimony of the opposite party when that testimony will support either of two contrary conclusions with respect to a material issue of fact.”

In the instant case we think the evidence is such that a finding could have been made to the effect that the 1954 Ford was an automobile within the contemplation of the language used in the policy.

In discussing the evidence in another summary judgment proceeding, the Supreme Court in James T. Taylor, etc. v. Arlington Ind. School District, 160 Tex. 617, 335 S.W.2d 371 (1960), held: “While these facts, if true, would not necessarily bar equitable relief where the elements of remediable mistake are present, still we think that the trial court’s summary judgment should not have been granted, for the reason that the record shows that the only witness testifying with reference to the error was Hicks, who was an interested witness. (Emphasis added.) The general rule is that the testimony of an interested witness does no more than raise a fact issue to be determined by the jury. While there are two exceptions to the rule, it seems settled that when testimony comes from an interested party and is of such a nature that it cannot be readily contradicted if untrue, an issue relating to the credibility of the witness is presented.”

In our case the appellant certainly was not in position to readily contradict the evidence as to Dietiker’s intention regarding to the condition of the 1954 Ford. It did not even know such car existed until after the Dietikers had disposed of it. Neither was it in position to readily rebut the evidence as to Dietiker’s intention regarding final disposition of the Ford, or his opinion evidence. Thus the evidence of Dietiker and the other two witnesses presented the question of credibility to the court. In order to find as he did he had to accept the evidence of the interested witnesses as true, thus passing on the credibility of the witnesses.

It may well be that appellees will be able to prove that the 1954 Ford was not an automobile as contemplated by the policy provisions. See Canal Insurance Co. v. Brooks, 201 F.Supp. 124 (U.S.Dist.Ct., W.D.La., 1962), affirmed, 5 Cir., 309 F.2d 751, and Civil Service Employees Ins. Co. v. Wilson, 222 Cal.App.2d 519, 35 Cal.Rptr. 304 (Dist.Ct.App., 5th Cir., 1963).

Viewing the whole record, however, in the light most favorable to the party (Republic Ins. Co.) against whom summary judgment was granted, we must hold that a material fact issue was presented as to whether or not the 1954 Ford was an automobile within the meaning of the policy provisions involved, and therefore summary judgment should not have been granted.

Reversed and remanded.