author: MASSEY, Chief Judge.

text:
    Roy Gene FRANTOM, Appellant, v. Ida M. NEAL, Individually, and as Ind. Ex. and Guardian, Appellee.
    No. 16902.
    Court of Civil Appeals of Texas. Fort Worth.
    March 15, 1968.
    Rehearing Denied April 12, 1968.

      Brown, Day & Crowley, and M. Hendricks Brown, Fort Worth, for appellant.
    Mock & Denbow, and C. Coit Mock, Wichita Falls, for appellee.
   OPINION

MASSEY, Chief Judge.

Edith Neal Burks died as the result of an automobile collision. Surviving her were a son and daughter, Royce Lee Burks and Joyce Neal Burks, and her parents, Ida M. Neal and Robert S. Neal. The deceased lived for a period following the collision, and expenses were incurred for hospitalization and treatment as well as those for her funeral.

The collision took place at night in April of 1964. Edith Neal Burks was driving an automobile in one direction on a highway. Tommie Edward Mcllvain was driving an automobile in the opposite direction, and by use of a tow-chain was pulling an automobile occupied by Roy Gene Fran-tom. The occasion therefor was pursuant to arrangements made between Mcllvain and Frantom, hereinafter noted. As the proximate result of Mcllvain’s negligence, undisputed for purposes of this case, occurred the collision causing the fatal injuries of Edith Neal Burks. In various capacities, representative of the interests of all who could become plaintiffs prosecuting causes of action against Mcllvain and Frantom, Ida M. Neal sued Frantom, the only defendant at time of trial.

Based upon a jury verdict judgment was rendered against defendant and in favor of plaintiffs, as follows: $6,000.00 to Ida M. Neal, as Guardian of the Estate of Royce Lee Burks, for his use and benefit; $7,500.00 to Ida M. Neal, as Guardian of the Estate of Joyce Neal Burks, for her use and benefit; $2,000.00 to Ida M. Neal, individually; $750.00 to Ida M. Neal, for the use and benefit of the Estate of Robert S. Neal (he having become deceased before time of trial); and $13,957.57 to Ida M. Neal, as Independent Executrix of the Estate of Edith Neal Burks, deceased.

Defendant Roy Gene Frantom appealed.

Affirmed.

By answers returned to a series of special issues the jury found independent personal negligence on the part of the defendant, who had been riding in and guiding the towed automobile. The finding was that he failed to apply his brakes just prior to the collision between the Mc-llvain and Burks vehicles, and that such failure was negligence and a proximate cause of the collision. In our opinion Frantom’s failure to apply brakes would not constitute negligence, but in any event —and assuming such failure to have constituted negligence — it did not amount to a proximate cause of the collision. In this state, a finding of “proximate cause” cannot be sustained unless there is proof of cause in fact and foreseeability. Enloe v. Barfield, 422 S.W.2d 905, 908 (Tex.Sup. 1968) and cases cited. Neither element exists in this case.

Hence the judgment in the case could not rest upon the independent liability of the defendant, but only upon vicarious liability derivative because of the defendant’s relationship with Tommie Edward Mcll-vain. Already noted was the fact that presence of Mcllvain’s negligence, amounting to proximate cause of the collision, is not a matter in dispute.

In answer to Special Issue No. 14 the jury found that at the time and on the occasion in question Mcllvain was an employee of the defendant. In connection with said issue the jury was instructed that the term “ ‘employee’ means a person in the service of another under contract of hire, express or implied, oral or written, whereby the employer retains the right of control in directing, not merely the end sought to be accomplished but also the means and details of its accomplishment —not merely what shall be done, but how it shall be done. It is not necessary that a wage or salary shall be paid to the employee by the employer, but it is sufficient if a right to be reimbursed for such services shall have been retained by the employee.”

By answer returned to special issue conditionally submitted on the foregoing the jury found that at the time and on the occasion in question Mcllvain was acting in the course of his employment for the defendant.

Special Issue No. 16 inquired of the jury whether at the time and on the occasion in question Mcllvain was an agent for the defendant. The jury, by negative answer returned, refused to find “agency”. In connection with the issue submitted the jury was instructed that the term “ ‘agent’ means one acting on behalf of another, by reason of an express or implied agreement and where one is authorized to act for the other party, being subject to the other’s control.”

Special Issue No. 18 inquired of the jury whether at the time and on the occasion in question Mcllvain and the defendant were engaged in a joint enterprise. The jury, by negative answer returned, refused to find “joint enterprise”. In connection with the issue submitted the jury was instructed that the term “ ‘Joint Enterprise’ means that the parties are engaged on a joint expedition where they have not only a joint interest in the object and purpose of the enterprise, but also an equal right, express or implied, to direct and control the conduct of each other in the operation of the motor vehicles involved.”

We have examined the entire record. Without discussion we will state our holding that the findings of the jury that Mcllvain was the defendant’s employee and at the time and on the occasion in question was acting in the course of his employment was supported by the evidence in the case and was not against the greater weight and preponderance of the testimony.

We will discuss the matter of alleged error in connection with the submission of the issues. In appellant’s brief the question is stated thus:

“POINT SIX
“The findings of the jury to Special Issues Nos. 14 and 15 that Mcllvain was an employee of Frantom acting in the course of his employment are in irreconcilable conflict with the finding of the jury to Special Issue No. 16 that Mcllvain was not an agent of Roy Gene Frantom, and also with the finding to Special Issue No. 18 that Mcllvain and Frantom were not engaged on a joint enterprise, such findings to Special Issues Nos. 14 and 15 having the effect of finding that Frantom had the right of control over Mcllvain, and the finding to Special Issues Nos. 16 and 18 having the effect of finding that Frantom did not have the right of control over Mcllvain.”
“POINT SEVEN
“The court erred in submitting, over Appellant’s objections, three series of issues, one having to do with relationship of employer and employee, one having to do with principal and agency, and one having to do with joint enterprise, such three different sets being the submission of various shades of the matter of right of control and inviting conflicting issues.”

Defendant points out the objection made to the submission of the three series of special issues. Therein he stated that such amounted merely to various shades of plaintiffs’ contention and theory, and that in view of the manner in which the issues were submitted and framed and definitions applying thereto, conflicting answers were invited and would undoubtedly result. He suggested in his objection that the court submit only one instance or inquiry with reference to control or right of control.

On the question of conflict we have tested the answers referred to and reached the conclusion that there is no conflict. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949).

Even before the repeal of Texas Rules of Civil Procedure, rule 278 the fact that special issues were multifarious or duplicitous did not constitute ground for reversal except where it affirmatively appeared that the complaining party was thereby prejudiced. Nothing in the objection of the plaintiff pointed out to the court any legal basis for reversible error. Plaintiff does not demonstrate prejudice in his brief. We have already stated our opinion that there was no conflict in the jury’s answers which would impair the judgment. Reversible error is not shown.

Defendant has denied the right of the trial court to render any judgment against him. Basis of the contention lies in the fact that the cause of action by plaintiffs growing out of the collision, to-wit: that against Mcllvain, had been disposed of prior to trial of the suit against defendant Frantom. The defendant claims he was thereby freed of liability.

On November 22, 1966, prior to the trial from which this appeal was taken, Ida M. Neal, in her capacity as Independent Executrix of the Estate of Edith Neal Burks, deceased, took a non-suit against Tommie Edward Mcllvain. The trial court entered an order granting the non-suit. Prior to such date all those who are plaintiffs in the instant case (by and through Ida M. Neal) had been prosecuting this same action against Mcllvain as well as the defendant. On said date the trial court approved an agreement and covenant not to sue Mcllvain on said action, parties thereto being Mcllvain and all plaintiffs other than Ida M. Neal in the capacity in which she took the non-suit. The trial court’s approval was in form of a “judgment”, though it embodied recitation to the effect that the parties’ “Agreement and Covenant Not to Sue” was presented and by the court approved.

The record does not include the “Agreement and Covenant Not to Sue”. It does not appear that the defendant sought to have it made a part of the record. It was before the trial court, however, and was by the court treated as a proper covenant not to sue rather than as a release. We believe we are bound to regard it as having been of that character in the absence of any demonstration to the contrary by the defendant. It follows that defendant can claim no benefit because thereof other than by way of a credit allowed in the judgment rendered against him to the extent of the amount received by interested plaintiffs from Mcllvain. Even though allowed such credit would not affect the judgment which plaintiffs obtained against the defendant.

Other of the defendant’s points of error relate to the matter of contribution. On the theory of the applicability of the principles of law stated by the Supreme Court in Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764 (Tex.Sup.1964), the trial court rendered judgment in amounts equaling exactly one-half the findings of the jury in answers to special issues on damages — except as applied to the nonsuited (against Mcllvain) action of Ida M. Neal in her capacity as Independent Executrix of the Estate of Edith Neal Burks, deceased. In other words the trial court proceeded on the theory that Mcllvain and the defendant were joint tort-feasors, jointly and severally responsible in damages for all the damages, and since under the “Agreement and Covenant Not to Sue” there had been disposition as by settlement insofar as claim therefor existed against Mcllvain (by some of the plaintiffs) recovery by those plaintiffs should be reduced by way of crediting to the benefit of defendant one-half of the amounts of damages found by the jury.

We are of the opinion that the principles of law written upon in Palestine Contractors, Inc. v. Perkins are without application in this case. Where circumstances exist which give rise to the right of indemnity the right of contribution does not exist. In this case we have held that plaintiffs’ right of recovery against the defendant was in no sense because of the negligence of the defendant— of himself or directed by himself — but rather was only supported under the doctrine of respondeat superior because of the master-servant relation between him and Tommie Edward Mcllvain, the tort-feasor primarily liable. One compelled to pay damages on account of the negligent or tor-tious act of another has a right of action against the latter for full indemnity unless barred by the nature of his own conduct. Defendant is not barred in this instance. 42 C.J.S. Indemnity § 21, p. 596, “Indemnity from Another’s Wrong”; 18 Am.Jur. 2d p. 55, “Contribution”, § 39, “Liability for another’s act; primary and secondary liability as between tortfeasors”; Harper & James, The Law of Torts, pp. 723-725, “Contribution of Joint Tort-Feasors”, § 10.2, “Contribution and indemnity”; Prosser on Torts, 3rd Ed., p. 276, “Joint tortfeasors”, § 47, “Contribution”, and p. 279, § 48, “Indemnity”; Restatement of the Law, p. 392, “Restitution”, § 87, “Vicarious Liability”; 13 Tex.Jur.2d, p. 701, “Contribution”, § 13, “Where right to indemnity exists”; 21 Tex.Digest Indemnity *®=5’13(1), “Right of one compelled to pay to indemnity from person primarily liable”; Kampmann v. Rothwell, 101 Tex. 535, 109 S.W. 1089 (1908); Oats v. Dublin Nat. Bank, 127 Tex. 2, 90 S.W.2d 824, 829 (1936).

The defendant’s pleadings did pray for indemnity as against Tommie Edward Mcllvain. To be noted from the court’s docket sheet is the fact that there was no answer or appearance by Mcllvain to the defendant’s third party complaint for indemnity. Under these circumstances the defendant’s right of indemnity must depend upon the validity of the citation served upon Mcllvain. The citation did not command Mcllvain to appear and file a written answer to the third party action or third party petition within the time prescribed by law. It merely commanded Mc-llvain to file an answer to “Second Amended Original Answer and Third Party” and the language does not command him to do anything at all as to a specific pleading. It does not tell him who the “Third Party” is. Though called as a witness by others, Mcllvain never appeared as a litigant conducting trial and never announced thereupon. We do not believe that the court erred in denying a judgment of indemnity to the defendant as against Mcllvain.

Those of the points of error of defendant-appellant which we sustain are covered in our discussion. Though sustained the judgment is nevertheless proper as reversible error does not appear. Other points of error have been considered but are severally overruled. The plaintiffs-appellees presented no cross-points, being satisfied with the judgment.

Judgment is affirmed.


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    A. J. ROBERTS et al., Appellants, v. C. Hobson DUNN, Appellee.
    No. 17067.
    Court of Civil Appeals of Texas. Dallas.
    Fob. 23, 1968.
    Rehearing Denied March 22, 1968.
    Waller M. Collie, Jr., J. Dan Bohannon, of Burford, Ryburn & Ford, Dallas, for appellants.

      John L. Hauer, of Akin, Gump, Strauss, Hauer & Feld, Dallas, for appellee.
   BATEMAN, Justice.

Venue only is involved here. The appellants A. J. Roberts and Logan Ford sued ap-pellee C. Hobson Dunn for certain attorneys’ fees and Dunn filed a plea of privilege to be sued in Denton County, Texas, where he resides. The trial court overruled the plea as to Roberts’ cause of action and sustained it as to that of Ford. The appellants appeal from the latter ruling.

Appellants alleged a joint cause of action for legal services jointly performed by them, pursuant to verbal agreements and a letter dated March 29, 1963, signed by ap-pellee and hereinafter quoted. For these services they demand $13,000. Roberts sued on a separate cause of action alleging that Dunn owed him $25,578.37 for services rendered by him alone in an entirely different matter.

It was shown without dispute at the venue hearing that Roberts was first employed by Dunn in connection with the defense of himself and another in a certain suit filed in federal court against them and others by Progressive Transportation Company; that Roberts wrote Dunn a letter telling him that on account of his health another attorney would have to be employed to assist him; that in response thereto Dunn came to his office and discussed with him the employment of Ford or another well known trial lawyer, and Dunn expressed a preference for Ford; that on or about March 29, 1963 Dunn, Ford, Mrs. Roberts and Roberts were present in the latter’s office when Ford dictated, Mrs. Roberts typed, and Dunn signed, a letter of that date, addressed to Roberts, which, after reciting the number and style of the suit, is as follows:

“This authorizes you to represent John H. Schumacher, Jr. and me in the defense of the above cause and all expenses and counsel charges in the defense of said cause will be paid by me, in Dallas.”

Both appellants controverted Dunn’s plea of privilege on the ground that the exception to exclusive venue in the county of the defendant’s residence found in subdivision 5, of Vernon’s Ann.Civ.St., Art. 1995, was applicable because of the agreement contained in the above letter. Dunn concedes that the letter provides a proper basis for the order overruling his plea of privilege so far as both of Roberts’ causes of action are concerned, but contends that said letter is insufficient to defeat his plea of privilege as to Ford’s cause of action. The trial court so held and in doing so, we think, committed error.

Dunn concedes that Roberts’ separate cause of action, which is not based on a written contract performable in Dallas County, is also maintainable in that county because of the rule against multiplicity of suits announced in Middlebrook v. David Bradley Mfg. Co., 86 Tex. 706, 26 S.W. 935 (1894), and followed in many cases since then.

However, we have not found a decision by any Texas appellate court passing on the identical question presented here. It is our conclusion that, since the pleadings and evidence show that the first cause of action sued on is in reality a joint one asserted jointly by the two plaintiffs, it was contemplated by the parties that the letter of March 29, 1963, though addressed only to Roberts, contained Dunn’s agreement to pay the entire fee in Dallas, not just Roberts’ part of it. Dunn knew of Ford’s association in the case by Roberts at the time he signed the letter, but he did not restrict his agreement to the payment of only Roberts’ part of the fee. Instead, he agreed to pay “all expenses and counsel charges” in Dallas.

Dunn’s counsel attempted to show by Roberts’ testimony on cross-examination that the claim was in reality two claims, that Roberts had a claim for the number of hours he had worked on the case and that Ford had a separate claim for the time he had worked on the case, but all Roberts testified was that his books would reflect the number of hours each of them worked on the case, and that he believes it is correct to say that if Ford spent two hours on a certain matter, and he, Roberts, spent eight hours, they were asking to be paid for ten hours of legal work. However, there was no evidence of any agreement between them as to how the total fee, regardless of how it was arrived at, was to have been divided between them. The effect of Roberts’ testimony as a whole shows clearly, we think, that he and Ford were suing jointly for one fee to which they claimed they were entitled without disclosing what separate interest each of them may have had in it. That being true, the cases relied on by appellee, holding that multiple plaintiffs suing on separate claims are not necessary parties to each other’s suit and that the “Middlebrook doctrine” is not applicable to such a situation, are not in point.

It was not necessary for Ford’s name to be mentioned in the letter, or for him to have signed it, for it to apply to his part of the joint cause of action asserted. Taylor Const. Co. v. Clynch, 196 S.W.2d 700 (Tex. Civ.App., Amarillo 1946, no writ). It was an instrument in writing recognized by all three parties as applying to “all expenses and counsel charges in the defense of said cause,” which would under the circumstances include the charges for Ford’s services as well as Roberts’.

Not only do we think Dunn contracted in writing to pay the entire fee in Dallas County, but we think the rationale of Middlebrook v. David Bradley Mfg. Co., supra, also applies. If the policy of the law requires a plaintiff having multiple claims against the defendant to sue on all of them in one action, to avoid a multiplicity of suits, then in our opinion that same public policy would require multiple plaintiffs owning jointly one indivisible claim to sue thereon in one action. It would be just as desirable to avoid a multiplicity of actions in the latter situation as in the former. See Dickson v. Klett, 211 S.W.2d 381 (Tex.Civ. App., Galveston 1948, mand. overr.); Foster v. Gulf, C. & S. F. Ry. Co., 91 Tex. 631, 45 S.W. 376 (1898); Shafer v. Brashear, 274 S.W. 229 (Tex.Civ.App., San Antonio 1925, no writ) ; Hawkins v. Schroeter, 212 S.W.2d 843 (Tex.Civ.App., San Antonio 1948, no writ) ; Compton v. Rahl, 94 S.W. 2d 194 (Tex.Civ.App., Austin 1936, no writ) ; South Plains Telephone Cooperative v. Painter, 278 S.W.2d 416 (Tex.Civ.App., Amarillo 1954, no writ).

Since Roberts admittedly had the right to sue on this joint claim in Dallas County, and since the public policy, as announced in the above cited cases, requires the entire controversy to be litigated in one proceeding in one court, the trial court should have overruled Dunn’s plea of privilege in its entirety.

For the reasons given, the judgment appealed from is reversed and here rendered overruling the defendant Dunn’s plea of privilege as to the entire cause of action asserted by both appellants. The costs are taxed against the appellee.

Reversed and rendered.


author: COLEMAN, Justice.

text:
    George E. WEAVER, Appellant, v. ROYAL PALMS ASSOCIATES, INC., Appellee.
    No. 15268.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    March 21, 1968.

      T. D. Smith, Houston, Brigman, Martin & Smith, Houston, of counsel, for appellant.
    Underwood & Holcombe, Decatur J. Hol-combe, Houston, Louis C. Abernathy, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is a suit to recover the loss sustained as a result of a fire in an apartment house. After a trial to the court without a jury, judgment was rendered in favor of the alleged owner against the occupant of an apartment.

Appellee alleged that it was the owner of an apartment building in which appellant occupied an apartment, and that on or about July 16, 1963, appellant carelessly and negligently permitted or caused a fire to occur in the apartment, which negligence proximately caused the damages of which complaint is made.

In the alternative appellee alleged that appellant entered into a rental agreement with appellee as to the premises and thereby warranted that he would return said premises in as good condition as when he first occupied same, less customary and reasonable wear, tear and depreciation, but that because of his excessively careless and negligent use of the premises it was damaged in the amount of $385.73 when returned.

Appellant plead only a general denial and offered no testimony at the trial. The only witness testifying at the trial was an insurance adjuster who inspected the premises the day after the fire and made an estimate of the damage. While he was at the apartment appellant came in for the purpose of removing some of his belongings. Appellant told the adjuster that he and a friend were in the apartment when the fire happened and that he thought that it was caused by a cigarette. The witness did not know which one was smoking or whether appellant ever smoked cigarettes. There is no evidence as to where either of them was when the fire started. The fire originated in the bed. Appellant and his friend tried to put it out with water and finally pulled the mattress and box springs outside the house. Nothing else was burned except the carpet, although there was smoke damage. The witness testified that it was either appellant or his friend “that had a cigarette burning that caused the bedding to ignite.” Appellant told the witness that “he didn’t feel like he was responsible for it and that his rental he figured he had paid would cover this damage.” While the apartment is not described in detail, there is evidence that it included a living room, hall and bedroom. There is no testimony that appellee owned the apartment building.

“Waste is an injury to the reversionary interest in land caused by the wrongful act of a tenant or other party rightfully in possession, * * *. Waste includes injury resulting from failure to exercise reasonable care in preserving the property. (citations omitted)
“The principle is not questioned that there is implicit in the tenant-landlord relationship the duty of the tenant to use reasonable care to protect leased premises from injury other than that ordinarily resulting from wear and tear.” (citations omitted) R. C. Bowen Estate v. Continental Trailways, 152 Tex. 260, 256 S.W. 2d 71 (1953).

Here appellee has failed to produce evidence of a wrongful act on the part of appellant. There is no evidence that he either intentionally or negligently caused the bedding to ignite. Nor is there any evidence that he failed to use reasonable care in protecting the premises from injury. The only evidence bearing on these questions is the statement made by appellant to the witness that he thought a cigarette caused the fire; the fact that the fire started in, and was confined to, the bed; and the fact that only two people, one of whom was appellant, were in the apartment at the time. Clearly after the fire was discovered, appellant used reasonable care in protecting the premises. The fire was burning to the extent that appellant was unable to put it out with water. The witness found the bedroom carpet quite wet the next day. While appellant was dragging the mattress down the hall, burning pieces of the mattress fell off, igniting the carpet. There is no evidence that appellant suffered burns. It is quite as logical that appellant was not in the bedroom when the fire broke out as that he was present. It is no more reasonable to suppose that the cigarette was placed on the bed, or in a position to fall on the bed, by appellant than by his friend.

There is no evidence that appellant was aware of any negligent conduct on the part of his companion calculated to endanger the premises. In the absence of such knowledge he would not be responsible for such conduct. Great Atlantic & Pacific Tea Co. v. Athens Lodge No. 165, 207 S.W. 2d 217 (Tex.Civ.App., Ft. Worth, 1947, error ref., n. r. e.).

Appellant contends that there was no testimony or other evidence that the apartment building was owned by appellee, and that as a result there is no evidence that a landlord-tenant relationship existed between ap-pellee and appellant. Appellee contends that ownership in appellee can be inferred from the similarity between the names of the appellee corporation and the apartment building, Royal Palms Apartments. In the case of Southern Underwriters v. Girard, 107 S.W.2d 775 (Tex.Civ.App., Texarkana, 1937), while there were no signs up at a refinery either to show who owned it or its name, the court held that the fact that equipment and parts shipped and delivered and installed in the plant were addressed to “Adams Oil Company”, and that stationery in the office carried the heading “Adams Oil Company”, in the absence of explanation, raised an issue for the jury as to ownership. Here we are asked to reach the same conclusion from the fact that the insurance adjuster testified that he was employed to investigate a fire at the Royal Palms Apartments at 3711 Link Valley, and that the suit was filed by Royal Palms Associates, Inc. There is no testimony that the adjuster was employed by the corporation. Such an inference is not justified. The names are not the same, and there is nothing to show that the name of the corporation is or has ever been associated with the apartment building. The landlord-tenant relationship is placed in issue by appellant’s general denial.

Since the evidence tending to establish the landlord-tenant relationship is so slight as to raise a mere surmise or suspicion, and since there is no evidence of negligence, the trial court should have directed a verdict for appellant. 56 Tex.Jur.2d, Trial, § 214, p. 554 et seq.

The judgment of the Trial Court is reversed and judgment is here rendered that Royal Palms Associates, Inc., take nothing by this action.

Reversed and rendered.


text:
    SAPPHIRE HOMES, INC., et al., Appellants, v. Ben M. GILBERT, Trustee, Appellee.
    No. 17012.
    Court of Civil Appeals of Texas. Dallas.

    Feb. 23, 1968.
    Rehearing Denied March 22, 1968.

      Henry D. Akin, of Akin, Gump, Strauss, Hauer & Feld, Dallas, for appellants.
    Kleber C. Miller and M. Earl Rutledge, of Shannon, Gracey, Wright, Ratliff & Miller, Ft. Worth, for appellee.
   BATEMAN, Justice.

This is a suit to recover double the amount of alleged usurious interest paid by Bessemer Forging Company, hereinafter called “Bessemer”, on a certain loan transaction. Bessemer sued Chill Juice, Inc., a corporation, Sapphire Homes, Inc., a corporation, which will be called “Sapphire” herein, Barns Lumber Company, a partnership consisting of J. M. Barns and C. A. Barns, and J. M. Barns and R. F. Daniels, individually, alleging that they conspired and acted in concert to charge Bessemer an illegal, usurious rate of interest on the loan, but which would have the semblance of a valid, legal transaction, in that it would be made to appear that Chill Juice would lend $120,000 to Bessemer, of which amount Bessemer would pay $20,000 to Sapphire for its “services” in procuring the loan for it and endorsing or guaranteeing payment of the same, and that an attorney’s fee of $5,000 would be paid to attorney Harmon L. Watkins; but that in truth the $20,000 fee to Sapphire, the $5,000 fee to Watkins and the 5½ per cent per annum interest specified in the note, all constituted “interest,” as that term is defined by statute, and greatly exceeded the maximum of 10 per cent per annum allowed by law.

During the pendency of the suit Bessemer became bankrupt and its trustee, Ben M. Gilbert, was substituted as plaintiff. At the conclusion of a nonjury trial, the trial court rendered judgment for appellee against Sapphire, Chill Juice, J. M. Barns and Ralph Daniels, jointly and severally, in the sum of $48,176.68 (double the $20,-000 “fee” paid to Sapphire and $4,088.34 representing the S½ per cent interest paid on the note, but not taking into consideration the $5,000 fee to Watkins).

The court filed findings of fact and conclusions of law. It found that one Morris, a certified public accountant, learned that Bessemer sorely needed a large loan to avert imminent foreclosure on its physical assets, and was told by one Snell, another C.P.A., that he had a client who might make a loan for the 20 per cent interest which the borrower was willing to pay; that Snell presumably contacted Barns, who said he was interested in becoming a party to the loan for the “finder’s fee,” and who presumably contacted Watkins and asked him to take care of the legal matters; that upon learning that Snell wanted a corporate charter to use in making the loan Morris told him of Chill Juice, Inc., which had never functioned as a corporation, had no financial background, its nearest approach to having any capital being a check for $1,000 which never left the possession of the maker; that Barns heard of Chill Juice for the first time on the day the loan was closed, which was the first time Morris learned that Sapphire was to be the recipient of the $20,000, which is variously denominated in the record as the “endorsement fee” and the “finder’s fee”; that Sapphire had debts which exceeded its assets; that the Republic National Bank, in lending the money, which was in turn loaned to Bessemer, did not consider the credit of Chill Juice or Sapphire but relied on the financial backing of Barns Lumber Company and Daniels; that out of the proceeds of the $120,000 loan the title company paid $20,000 to Sapphire, $5,000 to Watkins, and $95,000 to Bessemer; that the $5,000 fee was paid to Watkins voluntarily by Bessemer for his services in checking the legal features of the loan and advising that the $20,000 “brokerage fee” was proper, and was not an “exaction” of any of the defendants; that Bessemer paid $124,088.34, of which $24,088.34 was interest, which exceeded 10 per cent; that Daniels and Barns required the $20,000 to be paid as a condition for making the loan, and that the recipient of the actual benefit of the loan was a selectee of theirs; that in reality Barns and Daniels used the corporate entities as lending and endorsing agencies when there was no factual support in actuality for such manner of handling, and that such was done to give the loan an appearance contrary to actualities; that Sapphire was neither a finder which would justify charging a finder’s fee, nor was it an arm’s length transaction for it to support the loan with credit which did not in fact exist; that Republic National Bank issued its check for $120,000 to Chill Juice and the title company disbursed the proceeds after Chill Juice endorsed it; that the note executed to the bank and the note executed by Bessemer each bore 5½ per cent interest, which was paid by Bessemer and the bank was the actual recipient thereof, having been the entity that provided the sum loaned; that the $20,000 paid to Sapphire was not for services as agent for Bessemer in finding a lender in the person of Chill Juice but was a spurious transaction to cloak the loan with an aspect other than that which actually existed; that Fort Worth National Bank paid Republic National Bank $124,088.34 as proceeds of the loan made to Bessemer; that the $4,-088.34 paid in interest on the note for $120,000 was paid by Bessemer as interest on its note and in turn passed to Republic Bank in discharge of the obligation to it.

The trial court’s conclusions of law were that Barns and Daniels are liable to ap-pellee for the $20,000 paid by Bessemer because their nominee (agent) Sapphire received that amount as interest, and because they made the loan for the $20,000 which was offered by the borrower as compensation for the loan in addition to the 5½ per cent interest, and having exacted such amount are answerable for having charged usurious interest, though their nominee Sapphire was the actual recipient, and are liable for the $4,088.34 paid as accrued interest, though such amount was received in the final analysis by Republic Bank, because they first received it and by their own design used it to discharge their interest obligation as guarantors to the bank; that they are liable for all interest paid by Bessemer because they exacted the payment thereof, and because their agents, Morris and Snell, and particularly Snell, “designedly used corporate entities to give the transaction an appearance which would exempt the application of penalty provisions of the law,” and the corporations were not bona fide participants in that they lacked substance; that Chill Juice and Sapphire are liable for the interest paid by Bessemer because they were parties to an unlawful exaction of usurious interest; that Barns and Daniels are not liable for the $5,000 paid to Watkins because it was not established that such fee was not voluntarily paid by Bessemer, nor was it shown that it was exacted by such defendants or that they profited therefrom; that Barns Lumber Company, a partnership, is not liable for any amount because it was not shown who the partners were at the time in question.

Those defendants against whom the judgment was rendered now appeal on five points of error. By two cross points the appellee complains of the action of the trial court in excluding the $5,000 fee paid to Watkins from consideration in assessing the damages.

The statutory penalty for exacting and receiving usurious interest is the award of double the amount of such interest to the one paying the same.

It would unduly and unjustifiably lengthen this opinion to summarize the 380 pages of testimony and 49 exhibits. In our opinion, they do support the court’s findings and conclusions. Most of the facts are undisputed. Bessemer, being in desperate financial straits and facing foreclosure on its assets, was willing to pay 20 per cent in addition to normal interest charges if it could obtain a loan of approximately $100,-000. It was not a desirable loan, from a lender’s point of view, at a lawful rate of interest. Barns and Daniels were successful business men, one engaged primarily in the lumber business and the other in construction. They apparently had excellent credit standing at the Republic National Bank of Dallas. The accountants, Morris and Snell, knew of Bessemer’s plight and presented the matter to Barns and Daniels as an opportunity to make some money. When Snell first talked to Barns about it Barns told him that Barns Lumber Company was not in the finance business but that if Sapphire could guarantee the loan and get a guarantor’s fee “something might be worked out”; that he was interested in it if he could arrange it so Sapphire could make some money out of it.

Sapphire was a Florida corporation. All of its stock was owned in equal shares by Barns and Daniels. It had been losing money and its assets were less than its debts. It was not in the business of either lending money or guaranteeing the obligations of others. It was not shown to have had any previous dealings of any kind with Bessemer. If Barns and Daniels were to lend the money to Bessemer, it would seem incongruous, to say the least, for their own corporation to guarantee to them that Bessemer would repay the loan. Moreover, regardless of who owned Sapphire, the guarantee by an insolvent corporation would be of no value to the lender. Sapphire was clearly not the “finder” of the loan and would therefore not be entitled to charge Bessemer a “finder’s fee.”

In view of their ownership of all of Sapphire’s capital stock, it was doubtless considered advisable, if not necessary, for some person or entity other than Barns and Daniels to appear as the lender. One of the accountants had in his files the charter of Chill Juice, Inc., a Texas corporation which had never actually had any capital and had never transacted any business. The accountant offered to let this corporation be used as the lender. Having no money whatsoever to lend, Chill Juice was put through the formality of borrowing .$120,000 from the Republic National Bank at 5½ per cent per annum, and simultaneously lending the same amount, at the same rate of interest, to Bessemer. Chill Juice, of course, having no assets or credit, could not have borrowed the money from the bank on its own unsecured note, but the bank was willing to lend the money to Chill Juice if Barns and Daniels would guarantee its repayment. Barns and Daniels executed a written guarantee, and primarily on the strength thereof the Republic Bank issued its cashier’s check to Chill Juice for $120,000. Several months, later, Bessemer obtained a loan from the Fort Worth National Bank and out of the proceeds thereof the principal and accrued interest due on Bessemer’s note to Chill Juice were paid directly by the Fort Worth bank, at Bessemer’s direction, to the Republic Bank, which then held Bessemer’s note as collateral to Chill Juice’s note.

The trial court concluded from this evidence that the roles played by Sapphire and Chill Juice in this series of transactions were purely chimerical, and that by looking through the form of the transaction to the realities thereof Barns and Daniels were shown to be the real lenders and that by making the payment of the $20,-000 to their wholly owned corporation a condition to their making the funds available to Bessemer, they exacted a payment “for the use or forbearance or detention of money” that was clearly usurious. Articles 5069 and 5071, V.A.C.S., then in effect; now Articles 5069-1.01 and 5069-1.04, V.A.C.S.

By their first point of error on appeal the appellants complain of the holding by the trial court that the $20,000 received by Sapphire was interest received or collected by Sapphire for the use, forbearance or detention of money. It is argued that compensation paid to a third party for services in procuring a loan for the borrower, or for selling or lending his credit to induce the lender to make the loan, does not come within the statutory definition of interest.

One of the cases most strongly relied on by appellants is Donoghue v. State, 211 S.W.2d 623 (Tex.Civ.App., Austin 1948, writ ref’d n. r. e.). In that case these well known rules were announced: that charges paid by a borrower through a broker or other third person as compensation for services in procuring a loan are not properly to be considered as interest in determining whether the loan is usurious, that one may lawfully sell his credit by guaranteeing a loan, the compensation for which service is not properly chargeable as interest in determining whether the loan is usurious, and that reasonable charges paid by the lender to a special agent for special services rendered in connection with the loan are not properly classified as interest (though charged to the borrower) in determining whether the loan is usurious; but it was also held that these relations of broker, guarantor or special agent “must be bona fide, and not merely colorable ‘for the purpose of concealing a usurious loan.’ ” (Italics ours.)

To the same effect is Greever v. Persky, 140 Tex. 64, 165 S.W.2d 709 (1942), also relied on by appellants. Both Donoghue and Greever might be cited in support of our decision on this point.

The only other case cited by appellants under this point is Dewey v. American Nat. Bank, 382 S.W.2d 524 (Tex.Civ.App., Amarillo 1964, writ ref’d n. r. e.). In that case, it was undisputed, and the jury found, that the third party, to whom the borrower agreed to pay a finder’s fee, actually did influence the lender to make the loan, and the lender received no part of that fee. The facts are therefore so dissimilar to those in the case at bar that we do not consider the case to be in point.

We hold that there is no evidence that Sapphire or its officers actually produced or found the lender in this case, or that the signing of Sapphire’s name to Bessemer’s note payable to Chill Juice was done in good faith pursuant to an agreement that it was actually selling or lending its credit for an agreed compensation voluntarily paid by Bessemer. The evidence is to the contrary. Appellants’ first point of error is overruled.

By their second and third points of error appellants complain of the trial court’s action in holding Barns and Daniels individually liable for double the amount of the $20,000 received by Sapphire. They argue thereunder that the usury statutes penalize only him who actually receives the usurious interest, that Barns and Daniels did not receive any part of the $20,000 which was paid to Sapphire and there is no ground on which to pierce the corporate vgil; but if the corporate veil should be pierced, then that Barns and Daniels would be entitled to a fee for their services in producing a lender for Bessemer and for lending their credit to Bessemer. We do not agree with appellants.

Ever since the adoption of the Texas Constitution of 1876, the public policy of this state has denounced the exacting and collecting of usurious interest. If a person desiring to make a loan of money at a usurious rate of interest could avoid his liability for the statutory penalty by simply directing a large part of the exaction to be paid to a corporation, all of whose capital stock is owned by him, and particularly if that corporation were insolvent, the usury laws might as well be repealed.

As stated in Temple Trust Co. v. Sewell, 133 Tex. 417, 126 S.W.2d 943, 947 (1939):

“The courts will diligently look through the form of a transaction to discover illegal interest and protect the borrower from its consequences, but they will not be diligent to treat a carefully-planned disguise as other than what on its face it purports to be, and was intended to be, merely to save the lender from his usurious act.”

See also Standard Supply & Hardware Co. v. Christian-Carpenter Drilling Co., 183 S.W.2d 657 (Tex.Civ.App., Galveston 1944, writ ref’d) ; Schmid v. City Nat. Bank of Wichita Falls, 132 Tex. 115, 114 S.W.2d 854 (1938); Independent Lumber Co. v. Gulf State Bank, 299 S.W. 939, 942 (Tex.Civ.App., Galveston 1927, writ ref’d); Graham & Locke Investments v. Madison, 295 S.W.2d 234, 243 (Tex.Civ.App., Dallas 1956, writ ref’d n. r. e.); and F. B. & D., Inc. v. Nathan Alterman Electric Co., 394 S.W.2d 821, 823 (Tex.Civ.App., San Antonio 1965, writ ref’d n. r. e.), wherein it was said that our anti-usury statutes “have as their purpose the prohibition of usury under any cover or pretext whatever.” (Italics ours.)

The opinion of our Supreme Court in Stacks v. East Dallas Clinic, 409 S.W.2d 842 (Tex.1966), is not contrary to this view. In fact the court there said: “This Court will look through the form to the substance of a transaction; and the substance here bears out defendant’s contention that it only collected the interest for another, and received no benefit from such interest itself.”

Appellants argue that there were no grounds shown here for disregarding the fiction of corporate entity and holding Barns and Daniels liable for interest received by Sapphire. However, it has been held that the fiction may be disregarded where it is used to circumvent a statute or to justify wrong. 14 Tex.Jur.2d, Corporations, § 12, p. 131; First Nat. Bank in Canyon v. Gamble, 134 Tex. 112, 132 S.W.2d 100, 103, 125 A.L.R. 265 (1939); Houston-American Life Ins. Co. v. Tate, 358 S.W.2d 645, 656 (Tex.Civ.App., Waco 1962, no writ), which cites with approval Pacific American Gasoline Co. of Texas v. Miller, 76 S.W.2d 833, 851 (Tex.Civ.App., Amarillo 1934, writ ref’d), wherein the court said “ * * * a court of equity leaves itself open to the charge of downright gullibility if it closes its eyes and refuses to look through the shadow of a fictional corporate existence to see and ascertain its real ownership, to prevent fraud and protect legal rights.”

We think that this record clearly supports the trial court’s findings that Barns and Daniels were actually the lenders and that they were using their wholly owned corporate entity, Sapphire, to circumvent the anti-usury statutes and to justify the exaction of usurious interest, which is a “wrong” in that it contravenes well settled public policy. Accordingly, appellants’ second and third points of error are overruled.

By their fourth point of error appellants say the trial court erred in holding Chill Juice liable for double the amount of $20,000 received by Sapphire.

This corporation, empty shell though it may have been, did actually participate in the scheme to place a cloak of respectability over the usurious transaction, and in our view it was properly held jointly and severally liable with the other participants therein. Appellants’ fourth point of error is overruled.

By their fifth point of error on appeal, the appellants say the trial court erred in holding them jointly and severally liable to appellee for double the amount of the $4,088.34 in interest which was received and collected by the Republic National Bank of Dallas from the Fort Worth National Bank. They say there is neither pleading nor evidence to support this holding. We see no merit in this point.

The pleadings on this point, while in somewhat general terms, are in our opinion sufficient to support the trial court’s findings and conclusions. The evidence shows clearly that Bessemer’s note payable to Chill Juice was held as collateral by Republic National Bank at the time tíessemer borrowed the funds from the Fort Worth National Bank to take up the former obligation, and that in disbursing the proceeds of its loan the Fort Worth bank paid the amount of principal and interest due on Bessemer’s note payable to Chill Juice directly to the Republic National Bank, which held it. Chill Juice and its guarantors, Barns and Daniels, “received” the money by benefiting from its payment to the bank in that such payment discharged their obligation to the bank which happened to be in the same amount. The fifth point is overruled.

By two cross points appellee complains of the failure of the trial court to find that the $5,000 fee paid to Watkins was also interest exacted of Bessemer and to include it in the damages awarded to appellee. These cross points are without merit.

Lenders often require borrowers to pay expenses incurred by the lenders in connection with loans, • such as title policy premiums, recording fees, costs of supplemental abstracts and attorneys’ fees. When such expenses are actually incurred and they are paid in good faith to those furnishings the services, and no part of the payment is received by the lender, they are not properly classified as interest in determining whether the loan is usurious.

There was ample testimony to warrant the court’s action in this respect. Watkins’ own testimony was to the effect that this fee was for services he actually rendered as Barns’ and Snell’s attorney in connection with the loan, and there was no evidence to the contrary.

However, appellee argues that Barns and Daniels received the benefit of the $5,000 paid to Watkins just as much as they received the benefit of the $20,000 paid to Sapphire and the $4,088.34 paid to Republic National Bank. We do not agree with ap-pellee. The difference lies in the fact that the $20,000 was paid to a corporation which was wholly owned by Barns and Daniels and which actually rendered no service to them or to Bessemer, and in the further fact that the payment of the $4,088.34 not only extinguished Bessemer’s obligation to Chill Juice for the 5½ per cent interest due on that note, but also satisfied the similar obligation of Chill Juice, which had no assets or credit whatever, but which Barns and Daniels had guaranteed. The direct benefit to them from those payments is obvious, but no such benefit accrued to them from the payment of the Watkins fee. Both of the cross points are overruled.

The judgment appealed from is

Affirmed.

       Article 5073, V.A.C.S., in effect at the time of these transactions, was repealed effective October 1, 1967, and its provisions are now embodied in Article 5069 —1.06, Vernon’s Ann.Civ.St.


author: PER CURIAM.

text:
    Rafaela P. RODRIGUEZ, Appellant, v. Marla Guadalupe P. FLORES et vir, Appellees.
    No. 14680.
    Court of Civil Appeals of Texas. San Antonio.
    March 20, 1968.
    Oscar J. Pena, Laredo, for appellant.
    Roger C. Rocha, Laredo, for appellees.
   PER CURIAM.

This is an appeal from a take-nothing judgment of appellant’s suit to set aside her deed to appellee Maria Guadalupe P. Flores. The record was timely filed in this Court on December 14, 1967, however, no brief was filed' by appellant within thirty days as required by Rule 414, Texas Rules of Civil Procedure. The cause was set in regular order for submission on March 6, 1968, and both parties were notified of this submission by letter from the Clerk of this Court, mailed February 2, 1968.

On February 15, 1968, being sixty-three days after the record was filed, appellant filed her motion for leave to file her brief, three copies of which were tendered with said motion. As good cause it was alleged, “originally appellant did not intend to file a brief, as all pertinent matters are contained in the transcript, which is rather short in this case and which is self explanatory.” It was further alleged that “upon further consideration Appellant’s attorney has decided to submit a brief more concisely setting forth the pertinent matters in the case.” This motion for extension of time was opposed by appellees for failure to show good cause and because it would not allow them time to file a reply brief before submission of the cause.

Appellant’s motion does not show good cause for failure to timely file her brief. In Appellate Procedure in Texas, § 12.10(2), the question of “good cause” is considered, and it is there pointed out that the courts have established a high standard. As a general rule, unless the reason for failure to timely file the brief is based in part on the impact of some event beyond the immediate control of the litigant and which was to some extent unforeseeable, good cause does not exist. Lee v. Owen, 404 S.W. 2d 84 (Tex.Civ.App.—San Antonio 1966, no writ); Assembly of God Church of Tahoka v. Bradley, 196 S.W.2d 696 (Tex.Civ.App.—Amarillo 1946, no writ); 4 Tex.Jur.2d, Appeal and Error, § 633.

Under Rule 415, T.R.C.P., the appellate court may dismiss the appeal for want of prosecution when appellant has failed to timely file his brief unless good cause is shown for such failure and appel-lee has not suffered material injury thereby. It is seen that if appellant’s motion were granted appellees would have less than twenty-five days in which to file a reply brief before the cause was submitted, and therefore would, presumedly at least, suffer consequential injury. Mitchell v. Gregg, 394 S.W.2d 665 (Tex.Civ.App.—Tyler 1965, no writ).

We have examined the record in this cause and fundamental error is not shown. We therefore conclude that this appeal should be dismissed. Lee v. Owen, supra; Cuellar v. H. E. Butt Grocery Co., 397 S.W.2d 873 (Tex.Civ.App.—Corpus Christi 1965, no writ); Moorman Singleton v. Simmons (Tex.Civ.App.—Waco 1962) 360 S.W.2d 548, writ ref’d, 364 S.W.2d 188 (Tex.Sup.1963).

The appeal is dismissed.

      . Appellate Procedure in Texas, § 12.10(3); McDonald, Texas Civil Practice, § 18.05.


author: KLINGEMAN, Justice.

text:
    The QUEEN INSURANCE COMPANY, Appellant, v. Olga DOMINGUEZ et al., Appellees.
    No. 14650.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 15, 1968.
    Rehearing Denied April 3, 1968.

      Tom H. King, Arch B. Haston, San Antonio, for appellant.
    Putman & Putman, Richard G. Strong, Groce, Hebdon, Fahey & Smith, San Antonio, for appellee.
   KLINGEMAN, Justice.

On November 5, 1965, Olga Dominguez, hereinafter called “Miss Dominguez,” left her 1965 Pontiac LeMans automobile with Superior Pontiac Company, hereinafter called “Superior,” for minor repairs. Such automobile had been purchased from Superior by Miss Dominguez in July, 1965, for a purchase price of $3,175.92, and had been driven approximately 6,800 miles. While such automobile was in Superior’s possession, it was stolen from Superior’s parking lot, wrecked in New Braunfels, Texas, and subsequently returned to Superior. Said automobile is still in possession of Superior. Appellant, The Queen Insurance Company of America, hereinafter called “Queen,” had issued a policy of insurance to Miss Dominguez, with loss payable clause to Alamo National Bank, hereinafter called “Alamo,” insuring against loss of the automobile by theft, collision, and other coverage. After the wreck, Queen had an appraisal made by an automobile damage appraisal firm and offered to pay Miss Dominguez the amount shown by such appraisal as needed to repair her Pontiac. Some repairs were made to the automobile by Superior, although there is no evidence in the record as to who ordered such repairs. Miss Dominguez was not satisfied with the repairs or the condition of the automobile after those repairs were made, and filed suit against Queen alleging that the automobile could not be repaired to its former condition and was worthless. She sought recovery for $3,200.00, alleged to be the cash value of the automobile immediately prior to- the theft. Queen brought in Superior as a third party defendant, asking recovery over against Superior for any amount for which Queen was held liable under subrogation, alleging negligence against Superior in connection with the theft. Queen also brought in Alamo for the purpose of adjudicating its rights to any proceeds payable under the policy. After a trial to a jury, the court entered judgment for Miss Dominguez and Alamo against Queen in the amount of $2,875.00, decreed that Queen take nothing as against Superior, and awarded Queen all right, title and interest of Miss Dominguez and Alamo in and to said automobile upon payment of said sum of $2,875.00.

The jury found that the value of the automobile before it was stolen was $2,875.00; that after recovery but before any repairs had been made the value was $750.00; that after the repairs the value was $1,900.00; that the reasonable cost of labor and material required to restore such automobile to substantially its former condition prior to its having been stolen was $1,850.00. The jury also found that Superior was not negligent in the loss of the automobile, and that Miss Dominguez did not authorize Superior to make repairs on her automobile.

The policy of insurance, among other things, contained the following provisions:

“LIMIT OF LIABILITY. The limit of the company’s liability for loss shall not exceed the actual cash value of the property, or if the loss is of a part thereof the actual cash value of such part, at time of loss, not what it would then cost to repair or replace the property or such part thereof with other of like kind and qual-rty ⅜ ⅜ ⅜ **
“PAYMENT OF LOSS — Part III. The company may pay for the loss in money; or may repair or replace the damaged or stolen property; or may, at any time before the loss is paid or the property is so replaced, at its expense return any stolen property to the named insured, or at its option to the address shown in the declarations, with payment for any resultant damage thereto; or may take all .or such part of the property at the agreed or appraised value but there shall be no abandonment to the company.”

Queen’s primary contention on this appeal is that the trial court erred in rendering judgment for the value of the automobile.

After a careful consideration of the entire record, we have concluded that the jury’s verdict does not support the judgment rendered against Queen in the amount of $2,875.00.

If there has been a total loss of the automobile, the measure of damages is the reasonable cash market value of the car immediately before the theft. Stuyvesant Ins. Co. v. Driskill, 244 S.W.2d 291 (Tex. Civ.App. — Fort Worth 1951, no writ); Firemen’s Ins. Co. of Newark, N. J. v. Universal Credit Co., 85 S.W.2d 1061 (Tex. Civ.App. — Eastland 1935, no writ); Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 6, Perm.Ed., § 3792, p. 472; 17 Tex.Jur.2d Damages, § 93. There is no finding in this case that the automobile was a total loss. There is a jury finding- that the reasonable cash market value of the car after it had been damaged but before any repairs were made to it was $750.00, and there was testimony that such value was $1,500.00. Generally, the measure of damages for injury to a vehicle is established by proof of the market value immediately before the injury and the market value immediately after. Wilson v. Metcalf, 257 S.W.2d 855 (Tex.Civ.App. — Amarillo 1953, writ ref’d n. r. e.); 17 Tex. Jur.2d, Damages, § 92.

Appellees assert that under the holding in the Stwyvesant case, supra, the judgment of the trial court should be affirmed. That case was a suit for damages to a car which was wrecked after having been stolen from a parking lot, under a policy of insurance which contained almost identical provisions as involved in our case which are hereinabove set forth. In that case the trial court entered judgment for the actual cash market value of the automobile immediately prior to the theft, which holding was affirmed by the Fort Worth Court of Civil Appeals. Such case is distinguishable from the case before us in that there were findings by the trial court that (a) the car owner had at all times been ready and willing, and had offered, to accept delivery of the car in its repaired condition and give credit to the insurance company on his claim, but the insurance company had refused delivery of possession; (b) although some repairs had been made, more repairs were necessary to put the car in salable condition, and when such repairs were made, they would not substantially restore the automobile to its prior condition; (c) that the insurance company did not exercise its option to replace or repair and deliver the automobile to the owner. We have no comparable findings in this case, and there is no evidence that Queen has refused delivery of the. automobile to Miss Dominguez, or any finding to this effect. There is no basis in any of the jury findings for a judgment for the amount of $2,875.00.

Queen asserts that under the policy provisions this Court should reverse and render the judgment because such policy gave Queen certain options, one of which was to pay the costs of repairs; that this option was exercised by Queen, and the only evidence with regard to the cost of repairs was an estimate made by Fisher Auto Damages Appraisers in the amount of $924.20; and that this Court should render judgment holding Queen liable in this amount. The words “repair” and “replace” in a policy mean the restoration of the automobile to substantially the same condition in which it was immediately prior to the collision, and it would not be restored to such condition if the repairs left the market value of the automobile substantially less than the value immediately before the collision. American Standard County Mut. Ins. Co. v. Barbee, 262 S.W.2d 122 (Tex. Civ.App. — Fort Worth 1953, no writ) ; Smith v. American Fire & Casualty Co., 242 S.W.2d 448 (Tex.Civ.App. — Beaumont 1951, no writ). Where the repairs do not substantially restore the automobile to its former condition, the cost of repairs is not the proper measure of damages. American Standard County Mut. Ins. Co. v. Barbee, supra; Bankers & Shippers Ins. Co. v. Ellis Green Motor Co., 102 S.W.2d 294 (Tex.Civ.App. — El Paso 1937, writ dism’d); Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 6, Perm.Ed. § 3792, p. 473.

While there is evidence that such automobile was restored to substantially the same condition, there is also evidence to the contrary, including evidence that the car had been substantially damaged in the wreck, with damage to the frame, body, fenders, wheels, doors, gas tank and other items, and that after the repairs had been made the car didn’t look nice; the fender and door were wavy, the door was not properly aligned, the paint didn’t match; it looked like it had been thrown together. There is testimony by a used car salesman that after a car has been wrecked as this car had, it is hard to sell. The jury, after hearing all of the' testimony, found that after the repairs had been made the automobile had a value of $1,900.00, or $975.00 less than its value before the theft. The jury also found that the reasonable cost of labor and material to restore the automobile to substantially the same condition as it was immediately prior to its having been stolen was $1,850.00. There is no basis under the jury findings for this Court to render judgment holding Queen liable in the amount of $924.20, as requested by Queen.

We do not see how it is possible for this Court, under the pleadings, the evidence and the jury findings, to render a judgment of any kind in this case. Although the jury found that the cost of restoring the automobile to substantially the same condition as it was before the wreck to be $1,850.00, even under such finding, in order for Miss Dominguez to be placed in the same position as before the theft, possession of the automobile would have to be awarded to her, but in her suit Miss Dominguez does not ask for restoration of her automobile. Queen, by trial amendment, asked that if the court found that the car was not a total loss but had been properly repaired or was repairable, that Superior should be ordered to deliver possession of such automobile to Miss Dominguez, but that if the court found that the automobile was a total loss that Superior should be required to deliver possession of such car to Queen. There is testimony in the record that Superior would not deliver possession of such car until the amount of its repair charges were paid, and wrote Miss Dominguez stating that it was holding her car for $924.20 repair damages, interest and storage charges. There are matters which were raised by the pleadings and evidence in this case that were not determined by the jury’s findings and the judgment. Under the record before us, it is necessary that this case be remanded for a new trial and, accordingly, the judgment of the trial court is reversed and the cause remanded.


text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Shannon L. MORRIS et al., Appellees.
    No. 15231.
    Court of Civil Appeals of Texas. Houston (1st Dist.)
    March 14, 1968.
    Rehearing Denied April 4, 1968.

      Joe Resweber, County Atty., Gus Drake, Asst. County Atty., Houston, Joe L. Stanley, Austin, for Safety-Responsibility Bureau of Dept, of Public Safety, amicus curiae, for appellant.
    R. E. McDaniel, Winnie, Carey Williams, Houston, for appellees.
   COLEMAN, Justice.

This is an appeal from a judgment of the County Civil Court at Law No. One of Harris County, Texas, setting aside numerous orders of the Department requiring surrender of drivers’ licenses and automobile license plates and granting other relief.

The principal question involved is whether the Department can ignore previous orders issued by the County Court of Shelby County staying the suspension of appellees’ drivers’ licenses on the ground that such orders are void by reason of the fact that Shelby County was not the county in which the various appellees resided when they appealed from the action of the Department in suspending their drivers’ licenses.

By virtue of Section 31, Article 6701h, Vernon’s Ann.Civ.St., the Texas Department of Public Safety is authorized to order the surrender of all drivers’ licenses and motor vehicle registrations which have been suspended under the authority granted by said statute. The Department agrees that it has no authority to order the surrender of appellees’ drivers’ licenses and motor vehicle registrations unless they were suspended at the time the surrender order was issued. If the stay orders issued by the County Court of Shelby County are not void, and thus subject to collateral attack, the orders of the Department suspending the drivers’ licenses of appellees were suspended and ineffectual at the time the Department ordered the surrender of the licenses and automobile registrations. Texas Department of Public Safety v. King, 366 S.W.2d 215 (Tex. 1963). The stay orders granted appellees by the County Court of Shelby County are temporary orders from which no appeal lies. Texas Department of Public Safety v. Morris, 411 S.W.2d 620 (Tex.Civ.App., Houston 1967).

In this case the appeals to the court in Harris County were from the surrender orders issued by the Department. Appellees proved residence in Harris County at the time these appeals were taken, and proved the existence of the Shelby County stay orders in support of their pleas that there were no effective suspension orders at the time the surrender orders were issued. The Department offered to prove that none of the appellees were residents of Shelby County at the time the suspension orders were appealed to the County Court of that county. Appellees objected to this evidence on the ground that it constituted a collateral attack on the order of the Shelby County Court and that it was immaterial. The trial court admitted this evidence as to some of the appellees. There is in the record a stipulation that were the other appellees required to answer questions concerning their residence over these objections, they would testify that they were never residents of Shelby County.

It is stipulated that in each case filed in Shelby County the record consists of the plaintiff’s petition and the stay order issued by the county judge. The Department has filed no answers and no final judgments have been entered. The petitions do not allege that the petitioners are residents of Shelby County. Nothing in the record reflects that they are nonresidents. The stay orders issued by the Shelby County Court do not specifically adjudicate the question of residence, although each of them recites: “ * * * and it appearing to the Court that said application is in due form and that the law and the facts are such that same should be granted; * *

The provision of Article 6701h, Sec. 2(b), authorizing appeals to a court “in the county wherein the person aggrieved by such order or act resides” confers exclusive jurisdiction and is not a mere venue statute. Schwantz v. Texas Department of Public Safety, 415 S.W.2d 12 (Tex.Civ. App., Waco 1967, writ ref.).

As a general rule, upon collateral attack the validity of a judgment cannot be determined except by the record in the case. Unless the record negatives the existence of facts that are essential to the court’s jurisdiction, the law conclusively presumes upon collateral attack that those facts were established by the evidence in the case. Security Trust Co. of Austin v. Lipscomb ounty, 142 Tex. 572, 180 S.W.2d 151 (1944); Carroll v. McLeod, 133 Tex. 571, 130 S.W.2d 277 (1939, opinion adopted).

A leading case on this question is Templeton v. Ferguson, 89 Tex. 47, 33 S.W. 329 (1895). This case was considered by the Supreme Court of Texas in Easterline v. Bean, 121 Tex. 327, 49 S.W.2d 427 (1932), and there the Court said:

The court in that case, in effect, held that the question of the validity of judicial proceedings for want of jurisdiction may arise in: (1) Cases over which a court under the very law of its creation has not possible power, i. e., administration upon the estate of a living person, etc. In such case the law raises no presumption in their support. (2) Cases over which the law has conferred upon the court general judicial power, but its right to exercise it in a particular case is challenged upon the ground that no such state of facts existed or that no such preliminary steps have been taken as would authorize the court to exercise its powers in the given case.

In order to have the protection against collateral attack afforded by the presumptions discussed, the court rendering the judgment involved must be a court of general jurisdiction in the exercise of its ordinary judicial function. Otherwise the record and judgment must affirmatively show jurisdiction. Cunningham v. Robison, 104 Tex. 227, 136 S.W. 441 (1911).

The County Court of Shelby County in entertaining appeals from orders of the Texas Department of Public Safety is a court of general jurisdiction exercising its ordinary judicial function. Williams v. Texas Department of Public Safety, 371 S.W.2d 747 (Tex.Civ.App., Houston 1963).

In a comprehensive article entitled “Collateral Attacks on Judgments”, 41 Texas Law Review 499, Professor Gus M. Hodges says (at page 429):

The rule excluding extrinsic evidence is variously stated as holding that such evidence may not be considered to contradict judgment recitations, or the other parts of the record, or the presumptions supporting a silent record. It might be more broadly, accurately, and simply put, that on collateral attack extrinsic evidence may not be used to establish a lack of jurisdiction.

While it appears that there are no Texas cases on the point, the Supreme Court of Missouri has held that the rule against permitting collateral attack applies to protect interlocutory orders and proceedings as well as final judgments. State ex rel. Van Hofften v. Ellison, 285 Mo. 301, 226 S.W. 559 (1920). The decision in this case is approved in an annotation found in 12 A.L.R. 1165-1166.

In Cunningham v. City of Corpus Christi, 260 S.W. 266 (Tex.Civ.App., San Antonio 1924), in the opinion for the Court Chief Justice Fly says:

In the case of Walker v. Howard, 10 Tex.Civ.App. 602, 30 S.W. 1091, the following decision by the Supreme Court of Ohio, in Ex parte Bushnell, 8 Ohio St. 599, 601, is quoted with approval:
“The district court now has possession of the case and the parties to it, and has the legal power and capacity to hear and determine for itself the question of its own jurisdiction and right to act in the premises. The legal presumption in such cases always is that a court thus assuming to act will determine the question of its own jurisdiction correctly, until it has finally acted upon it. Hence it is a rule founded upon the comity which does, and, for the prevention of unpleasant collision, should always, subsist between judicial tribunals, that where court of general jurisdiction, and legally competent to determine its own jurisdiction, has acquired prior jurisdiction, de facto, over person or subject-matter, no other court will interfere with or seek to arrest its action while the case is still pending and undetermined. This rule is sustained and supported by all the a'nalogies of the law. * * * It is right in principle and preventive of unpleasant collision between different tribunals.”

In Neal v. Texas Employers’ Ins. Ass’n., 118 Tex. 236, 14 S.W.2d 793 (1929), the Supreme Court of Texas held:

“PER CURIAM. The record in this case shows that the petition of the Texas Employers’ Insurance Association to set aside the award in favor of the plaintiff in error, Neal, by the Industrial Accident Board, was filed in the district court of Reeves county on January 12, 1928, which was before the filing of the instant suit by Neal in the district court of Callahan county to mature the award. This being so, the issues as to whether or not the accident occurred in Reeves county, and as to the jurisdiction of the district court of that county to entertain the suit filed by the Texas Employers’ Insurance Association, are justiciable questions in the district court of Reeves county, for the determination of which that court is one of dominant jurisdiction. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063.
“The writ of error is accordingly refused.”

The County Court of Shelby County has jurisdiction to hear evidence and determine the existence of the facts necessary to establish the jurisdiction of that court to determine the merits of the action. So long as the appeals from the suspension orders filed in that court are pending and undetermined, no other court will interfere with its action or adjudicate the question of its jurisdiction in those cases. The temporary stays issued by the Shelby County Court are not void by reason of facts in the record of the particular cases in which the orders were issued and are not subject to collateral attack.

The trial court in this ■ case correctly held that the Department failed to sustain its burden of proving the existence of the facts which would authorize it to issue the surrender orders from which this appeal was taken.

In its judgment the trial court recited as a ground for the rendition of the judgment the failure of the Department to pay costs adjudged against it by this Court on a former appeal. We do not approve this portion of the trial court’s judgment. The Department is prohibited from making any payment except in pursuance of a specific appropriation of funds by the legislature by Article VIII, Section 6, of the Texas Constitution, Vernon’s Ann.St. Pickle v. Finley, 91 Tex. 484, 44 S.W. 480 (Tex.1898).

While the costs were properly taxed against the Department, payment can only be made from funds appropriated for that purpose by the legislature, and the State, or an agency thereof, will not be penalized by its inability or failure to make such payments. Houtchens v. State, 74 S.W.2d 976 (Tex.Com.App.1934, opinion adopted); Ibanez v. State, 123 S.W.2d 704 (Tex.Civ.App., El Paso 1939); Reed v. State, 78 S.W.2d 254 (Tex.Civ.App., Austin 1934), error dismissed.

While we have carefully considered all other assignments of error, we find it unnecessary to lengthen this opinion by writing further since the points discussed control the disposition of this case.

The judgment of the trial court decreed that all of the various orders of the Texas Department of Public Safety appealed from by the various plaintiffs herein are hereby set aside and voided and declared to be null and void. All of the plaintiffs referred to in this decree are named in Plaintiffs’ Third Original Petition. However the trial court by a previous interlocutory order had dimissed from the suit Ray Willard Smith, W. W. Smith, Ladelle S. Sluder, Martin T. Borrago, and Marvin Lee Gibson. They, therefore, were not “plaintiffs” at the time the final judgment was entered.

The judgment of the Trial Court is affirmed.

      . At the time the only court having jurisdiction of a suit to set aside an award of the Industrial Accident Board was a court in the county in which the accident occurred. Oilmen’s Reciprocal Ass’n. v. Franklin, 116 Tex. 59, 286 S.W. 195 (1926).


author: NYE, Justice.

text:
    A. W. BEAURLINE et al., Appellants, v. Prescott M. SMITH, Appellee.
    No. 340.
    Court of Civil Appeals of Texas. Corpus Christi.
    Feb. 29, 1968.
    Rehearing Denied April 4, 1968.
    Sid L. Hardin, Edinburg, for appellants.
    O. C. Hamilton, Jr., of Ewers, Tooth-aker, Ewers, Abbott & Evins, McAllen, for appellee.
   OPINION

NYE, Justice.

This is a suit for recovery of a real estate commission by the plaintiff Prescott M. Smith. The defendants, A. W. Beaur-line, L. A. Beaurline and Mathilda Beaur-line, hereafter referred to as “appellants”, answered and filed a cross-action alleging in effect, malicious prosecution, and seeking thereby actual and exemplary damages against the plaintiff and a third party defendant, Frank Theser. Summary judgment was granted by the trial court awarding plaintiff his commission and denying appellants any relief on their cross-action against plaintiff and Theser.

Appellants owned as partners a certain 1500 acre tract of land situated in Hidalgo County, Texas. Plaintiff, as a real estate broker, had for some rather lengthy period of time attempted to sell this land. He did not have a written listing, although it is undisputed that the appellants did desire to sell their property and had at least some discussion with the plaintiff about the sale of the land in question. During the early part of 1966 plaintiff attempted to negotiate a sale of this land to Frank Theser. Theser, by a written contract, proposed to purchase the land for $75.00 per acre. This contract was submitted to appellants’ local attorney who receipted escrow funds and forwarded the contract to Chicago, Illinois, for appellants’ signature. The contract provided for 5% real estate commission to Smith as agent for the appellants in consideration for his services as a real estate broker. After the contract had been mailed to the appellants and before the same had been received by them in Chicago, another party proposed to purchase the land for a higher figure. He flew to Chicago and presented another contract containing essentially the same terms, except that this purchaser proposed to pay $83.00 an acre. Before the appellants had accepted this offer, Smith called them from Texas explaining that' Theser’s contract was on the way and outlining the terms of such contract to them. The appellants informed Smith that they had just received a better offer but that if Theser would meet this offer, he could have the land. Smith and Theser declined to meet this additional price.

The affidavits on file reveal a dispute as to what took place relative to this telephone conversation. Appellees Smith and Theser contend that they had a prior bona fide agreement with the appellants to the effect that the appellants would sell the land to Theser for $75.00 per acre upon the exact terms set forth in the Theser contract and that appellants were obliged to go through with the Theser deal. On the other hand appellants contend that they had no deal with Smith and Theser; that the Theser contract was only an offer which had not been accepted or agreed to be accepted; that Smith threatened them over the telephone and told them that they would have to go through with this sale to Theser or that they (Smith and Theser) would put the appellants out of business in Hidalgo County, boasting of his (Smith’s) drag in Hidalgo County; and declaring that he and Theser would block the sale to the other purchaser and force the appellants to accept their offer. Although these disputed facts are interesting they are not material or essential to the proper disposition of this appeal.

It is undisputed however, that several days later Theser filed suit in Hidalgo County against the appellants for specific performance of the Theser contract and caused to be filed a lis pendens notice of this specific performance suit. Appellants contend that the filing of this suit for specific performance and the placing on record of the lis pendens notice, clouded the title to the appellants’ land to such extent that no valid title could be conveyed to the other purchaser or anyone else, and that because of the filing of such lis pendens notice the other purchaser withdrew his offer to purchase and his escrow money was returned.

It is appellants’ theory that Theser had no bona fide contract with the appellants, nor any valid oral agreement to enter into a contract and therefore Theser’s suit for specific performance was filed maliciously without probable cause and only to cloud the title to appellants’ land through the lis pendens notice so that they could not effect a sale to the other purchaser or anybody else to their damage.

However, a little over two weeks later, the appellants, through their attorney, wrote to Smith’s and Theser’s attorney, advising them that the appellants as “ * * * fee owners of the land involved in the above case have decided to go ahead and sell the land to your client; and I am enclosing herewith sales contract duly signed by all parties. We suggest you dismiss the above suit1 and release the Lis Pendens Notice and the transaction be closed as promptly as possible. * * * ” The contract that was attached to the letter was the original Theser contract, which had been signed originally by Theser and appellants’ attorney receipting the escrow funds before being mailed to Chicago. It now contained the signatures of all three appellants. The contract still contained the provision requiring the appellants to pay Smith a 5% commission in consideration of his services as agent for the appellants.

The suit for specific performance was dismissed and the sale of the land in question from the appellants to Theser was consummated. At the time of closing only one half of the 5% commission due Smith was paid to him, the other one half was withheld. Hence, Smith’s suit for his commission against appellants.

This present suit for the recovery of the other half of Smith’s real estate commission was met with the subject cross-action against Smith and Theser as a third party defendant. The basis of the appellants’ cross-action against Smith and Theser is the contention that the original suit for specific performance (No. B-23819, filed in the 93rd District Court of Hidalgo County, Texas) and the recording of the lis pendens notice was originally instituted as a result of a conspiracy between Smith and Theser; that such suit did block and did prevent the sale of appellants’ land to the other purchaser, to appellants’ '-damage in the amount of $12,000.00; and that because the act of bringing such suit was done with malice, appellants as cross-plaintiffs were entitled additionally to $10,000.00 exemplary damages.

Smith filed a motion for summary judgment that he recover of the appellants the balance due under the written contract for his real estate commission. Smith, as cross-defendant, and Theser, as third party defendant, filed additionally a motion for summary judgment that appellants, as cross-plaintiffs, take nothing against them. The trial court granted the motions and entered judgment awarding Smith his real estate commission in the amount of $2812.-SO and as to appellants as cross-plaintiffs, entered a take-nothing judgment favoring Smith and Theser.

The appellants in a number of points contend that the trial court erred in granting the summary judgment. The appellants did not deny the execution of the Theser real estate sales contract. The appellants do not base their defense on the Theser real estate contract, nor do they attempt in any manner to set aside the sale of the land. There is no summary judgment evidence that Smith accepted originally one half of the commission in settlement, nor is there any other defense interposed by appellants that would defeat Smith’s summary judgment for recovery of the balance of his commission under the contract. The contract was executed by all parties and the appellants’ letter of transmittal made no reference for deleting the commission due the plaintiff nor were there any stipulations, or conditions or reference to any such stipulation contained in the letter of transmittal referring to Smith’s commission. The closing statement of the abstract company had the brief explanation that one half of the commission was paid to Smith “as per instructions” and the comment and explanation that the other one half of the commission was “to be held in abeyance”. The appellees say that this was done at the time of the closing of the sale because of a threatened commission suit by the other real estate agent representing the other prospective purchaser. This never developed. Nowhere in appellants’ affidavits or summary judgment evidence do they state any legal basis why Smith would not be entitled to recover the other portion of the commission due under the Theser contract.

Appellants’ appeal is primarily directed at the action of the trial court in entering a take-nothing judgment on their cross-action against Smith and Theser. Appellants contend that they agreed to go ahead with the Theser contract upon the advice of their Chicago attorneys and for the purpose of minimizing their damages. They contend that the land was sold to Theser under a form of duress and that they were forced to sell to him or not sell their land at all. It is appellants’ contention that they only had two choices to make: (1) to contest the spurious law suit for specific performance and seek full damages or (2) sell the land to Theser for the purpose of minimizing their damages which they finally did on advice of their Chicago lawyers.

Appellants throughout their brief contend that there are disputed fact issues which should be tried; that such issues are to the effect that they did not waive any rights they had by selling the land to Theser; that the Theser contract was really only an offer to buy the land in question and that the lis pendens notice was a result of collusion and threats by Smith and Theser which caused them to lose their sale to the other purchaser to their damage. We hold that appellants’ cross-action is in the nature of an action for malicious prosecution. Malicious prosecution is an action for damages brought by a person, against whom a civil suit or criminal prosecution has been instituted maliciously and without probable cause, after the termination of the prosecution of such suit in favor of the person claiming damages. See 37 Tex.Jur. 2d, § 1, p. 518.

The appellees in counterpoints contend that the trial court was correct in entering the summary judgment dismissing the cross-action because (1) the cross-action was a compulsory counterclaim that should have been filed in the original suit for specific performance; (2) that the dismissal of the original suit was res judicata; and (3) that by settling the original suit, appellants have waived any cause of action that they may now have against the appellees; (4) that in any respect appellants are estopped to assert their cause of action in the present action; and (5) that appellants’ cross-action is in reality a suit for malicious prosecution and since the prior suit (suit for specific performance) was not concluded in their favor they have no cause of action here.

It is not necessary that we consider all of these counterpoints of appellees, as we agree that this cross-action is a suit for malicious prosecution and that the termination of the prior suit in favor of the appellants was an essential element of their action for. malicious prosecution. 37 Tex. Jur.2d, § 3 and § 4, pp. 520 and 522; Johnson v. State Board of Morticians, Tex.Civ. App., 288 S.W.2d 214.

The previous suit brought by Theser was for specific performance. It is undisputed that that suit was dismissed and that the appellants performed specifically. The dismissal of the prior suit at the request of the appellants cannot be construed in any way as a termination of such suit in cross-plaintiffs’ (appellants’) favor. Appellants’ failure to prevail in the prior suit constitutes a failure of a fundamental condition of this cause of action against Smith or Theser.

“A fundamental condition to the maintenance of an action for malicious prosecution of a civil suit is that the suit alleged to have been prosecuted should have terminated in the plaintiff’s favor.”

37 Tex.Jur.2d § 8, p. 525; Morris v. Hargrove, Tex.Civ.App., 351 S.W.2d 666; Sullivan v. O’Brien, Tex.Civ.App., 85 S.W.2d 1106, err. ref.; MRKVA v. Slovak, Tex.Civ.App., 107 S.W.2d 923; Browning v. Pay-Less Self Service Shoes, Inc., Tex.Civ.App., 373 S.W.2d 71; Davidson v. First State Bank of Andrews, Tex.Civ.App., 310 S.W.2d 678; J. C. Penney Company v. Gilford, Tex.Civ.App., 422 S.W.2d 25.

In Panhandle Lumber Co. v. Fairey, Tex. Civ.App., 3 S.W.2d 941, the Court, considering the effect of a Hs pendens notice, held that the institution of a suit to foreclose a judgment lien allegedly fixed against a homestead and the giving of a lis pendens notice thereof could not be the basis for an action for malicious prosecution. The Court quoted from Salado College v. Davis, 47 Tex. 131, wherein it was said:

“This was an ordinary civil suit, in which no extraordinary process was sued out, and, if the indirect effect of the suit was to interfere with the sale of the property which was to some extent the subject-matter of litigation, this is not such an injury as the law regards or makes actionable. * * * ”

And the Court quoted further:

“ 'An action collusively prosecuted, prosecuted when the parties to it all know that there is no right to enforce, has never been held to operate as lis pendens. * * * ’ Rippetoe v. Dwyer, 65 Tex. 703.”

We have considered all of appellants’ points and they are overruled.

Judgment of the trial court is affirmed.

      . Referring to the original specific performance case: “Re — Frank Theser Jr., VS: A. W. Beaurline No: B-23819 in the 93rd District Court of Hildalgo County, Texas.”

      . Referring to the original specific performance case: “Re — Frank Theser Jr., YS: A. W. Beaurline No: B-23819 in the 93rd District Court of Hildalgo Coun ty, Texas.”