author: PHILLIPS, Justice.

text:
    Della Burk LIEURANCE, Appellant, v. AUSTIN INDUSTRIES, a Division of Calcasieu Lumber Company, a Texas Corporation, Appellee.
    No. 11401.
    Court of Civil Appeals of Texas. Austin.
    May 11, 1966.
    Sanders, Scott, Saunders, Brian & Humphrey, Don M. Dean, Amarillo, for appellant.
    Robinson & Fotheringham, A. J. Robinson, Amarillo, for appellee.
   PHILLIPS, Justice.

This is a suit brought upon two promissory notes against appellant Della Burk Lieurance and against Amarillo Furniture Company, a Texas corporation.

Appellant Lieurance filed her plea of privilege to be sued in Potter County, the county of her domicile. Art, 1995, Vernon’s Civil Statutes. Appellant also filed a plea of non est factum. This appeal is from the order of the trial court overruling appellant’s plea of privilege.

We affirm.

Appellant is before this Court with three points of error. These are the error of the trial court in overruling appellant’s plea of privilege since there is no evidence to support the court’s ruling and the findings of fact implied thereby; since the evidence is insufficient to support the court’s ruling and the findings of fact implied thereby; since the implied findings are contrary to the great weight and preponderance of the evidence.

We overrule these points.

The promissory notes were prepared by appellee at its offices in Austin, Texas. Both notes were signed by appellant Della Burk Lieurance, due to the fact that immediately above her signature the typewritten words “Amarillo Furniture Company” appear, appellant contends that the notes are those of the Amarillo Furniture Company and not the personal obligations of appellant.

The notes duly admitted in evidence with execution thereof proved, show on their face to be contracts in writing performable in Travis County, Texas. Thompson v. Republic Acceptance Corporation, 388 S.W.2d 404, Sup.Ct.

Subdivision 5, of Article 1995 provides the following exception to the general rule:

“Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

In Cockrell v. Craugh, Tex.Civ.App., 338 S.W.2d 516, this Court held that a signature in a situation identical with that at bar and presenting the same defense, was the personal obligation of the party whose signature appeared thereon, citing Article 5932, Section 20, and Article 5936, V.A.C.S.

Appellant cites First State Bank of Denton v. Smoot-Curtis Company, Tex.Civ.App., 121 S.W.2d 667, as presenting a fact situation similar to the case at bar wherein the debt was held to be that of the corporation. This was not a plea of privilege case but was tried on the merits with findings by the jury that the maker signed as president of the corporation and that the note was accepted as a debt of the corporation.

Here we have the converse. There is sufficient evidence to sustain the implied findings of the court that appellee looked to appellant as the maker and that she signed the note in her individual capacity. There is no evidence that she ever signed the notes as an officer of the corporation, however there is evidence that she owed the money, that the signature was hers and that ap-pellee looked to her for payment.

We affirm the judgment of the trial court.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gene THORNHILL et al., Appellants, v. Mrs. Trupy ELSKES, Appellee.
    No. 4468.
    Court of Civil Appeals of Texas. Waco.
    April 7, 1966.

      T. E. Kennedy, Houston, for appellants.
    George Clark, Waco, for appellee.
   OPINION

PER CURIAM.

'Defendants appeal from an order overruling their plea of privilege. We affirm. On a previous appeal, Thornhill v. Elskes, 381 S.W.2d 99, Tex.Civ.App., writ ref. n. r. e., we affirmed an order overruling defendants’ plea of privilege in the same case.

The parties plaintiff and defendant in the case previously appealed were identical to those in the present suit. We held in the former case that venue was properly maintainable in McLennan County under subd. 4, Art. 1995, Vernon’s Ann.Civ.St. The first eight pages of the original petition adopted in the controverting plea in that case are identical to the first eight pages in the amended pleading before the trial court in the present appeal. In the first pleading now abandoned, declaratory judgment construing a will was sought. We reversed the nihil dicit judgment on the merits in the former case and declared the construction of the will to be that beneficiaries take devises as set out in the opinion, 381 S.W.2d at 104, burdened with debts and legal charges against the estate. We remanded for further proceedings not inconsistent with the opinion.

The original petition prayed for orders directing the executors as to the manner of carrying out the provisions of the will, for order of distribution, for appointment of a receiver, for appraisal and partition, and other orders effectuating the court’s interpretation of the will, for costs, “attorneys fees” and general relief.

The amended petition filed after reversal and remand alleged the outcome of the former appeal and that partial distribution had been made in conformity to the opinion. It alleged debts remaining, costs of court due, and alleged specifically that plaintiff, the independent executrix and trustee had incurred attorney’s fees in seeking construction of the will in good faith, and that defendants were also claiming attorneys’ fees. The new pleading prayed for an order giving directions as to the amount and manner of payment of attorneys’ fees, and executor’s commissions and expense.

Appellants say the amended pleading asserts a new cause of action for attorneys’ fees and therefore their new plea of privilege should have been sustained.

The amended pleading prayed only for relief which was incidental and ancillary to the cause of action originally asserted. Plaintiffs did not “abandon” that portion of the remedy and relief originally sought, i. e., construction of the will; that had been completely accomplished. It would have been useless, meaningless and futile to renew the prayer for that relief. The new plea of privilege after answer to the merits was not available, and was properly overruled. Foster v. Gulf, C. & S. F. R. Co., 91 Tex. 631, 45 S.W. 376; Thomas v. Ellison, 102 Tex. 354, 116 S.W. 1141; Gold v. Insall, Tex.Civ.App., 8 S.W.2d 542, writ dism.; Dickson v. McLaughlan, Tex.Civ.App., 51 S.W.2d 628, writ ref.; Adamson v. Hexter, Tex.Civ.App., 68 S.W.2d 568.

There is stated no new cause of action as in Watson v. Harrington, Tex.Civ.App., 285 S.W.2d 390, where an action for fraud in a trespass to try title case was first alleged in an amended pleading. We do not pass, of course, on the merits of the claim, but only on the issue of venue.

All points have been considered and are overruled.

Affirmed.


author: DIXON, Chief Justice.

text:
    PAN AMERICAN EQUIPMENT COMPANY et al., Appellants, v. GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, Appellee.
    No. 16722.
    Court of Civil Appeals of Texas. Dallas.
    April 22, 1966.
    Rehearing Denied May 20, 1966.
    Eugene Goldgar, Houston, for appellants.
    Harless, Bailey & Youngblood, Bruce Youngblood, Dallas, for appellee.
   DIXON, Chief Justice.

Appellee Great American Insurance Company of New York brought suit in Dallas County against James R. Cornish individually and Midwestern Equipment Company, a corporation, and Pan American Equipment Company, a corporation, for premiums alleged to be due on a policy of workmen’s compensation insurance. James R. Cornish is a resident of Harris County, Texas. The two corporate appellants maintain their principal offices and domiciles in Harris County. None of the appellants maintains an office or has an agent in Dallas County.

Each of appellants filed a plea of privilege seeking to have the cause transferred to Harris County. In its controverting affidavits appellee alleges that venue may be maintained in Dallas County under Article 1995, Subdivision 23, Vernon’s Annotated Civil Statutes, because the cause of action or part thereof arose in Dallas County. The parties agree that James R. Cornish is a necessary party and venue as to him may be maintained in Dallas County under Subdivision 29a if venue may be maintained in Dallas County as against the two corporate parties under Subdivision 23.

The only issue before us is whether the cause of action or any part thereof arose in Dallas County, Texas.

The material facts as we see them are not really disputed. James R. Cornish, originally doing business as Pan American Equipment Company, had requested Donald Gartner, of the Cochran Insurance Agency in Houston, Texas, to write his compensation insurance. Cornish had been placing his insurance with Gartner for about ten years. When Pan American Equipment Company was incorporated the insurance was written in its name as well as in the name of Cornish and the name of Mid-western Equipment Company, which owned some of the equipment being used. At the time of the suit Cornish was president and vice-president respectively of the corporate appellants. The policy here involved is a renewal policy.

The policy was filled out on the typewriter in appellee’s office in Dallas County. Since it covered operations in the State of Mississippi as well as Texas it had to be countersigned by appellee’s agent in Mississippi. The Mississippi agent had countersigned slips of paper in Mississippi and had sent them to appellee in Dallas County. One of these countersigned slips of paper was attached to the policy in appellee’s Dallas office.

On the last page of the policy there is this statement, “In witness whereof, the Company has caused this policy to be executed and attested, but this policy shall not be valid unless countersigned on the declarations page by a duly authorised agent of the Company.” (Emphasis ours.) On the first page of the policy there appears this statement, “Countersigned at Houston, Texas by Cochran’s Insurance Agency, Donald H. Gartner, Authorised Representative.” (Emphasis ours.)

An employee of appellee testified that Gartner is with the Cochran Insurance Agency which is a Houston representative of appellee and is domiciled in Houston, Texas. Gartner is an authorized representative of appellee.

Three of appellee’s employees testified— its Supervising Premium Auditor, its Administrative Manager and its Regional Accountant. None of them had ever had any direct dealings with James R. Cornish or the corporate appellants, none of them had ever seen Cornish before he appeared in court for the hearing on the pleas of privilege.

There is no evidence that after the Mississippi countersignature slip was attached in Dallas the policy was delivered directly from Dallas to appellants. The testimony is to the effect that the policy was sent from appellee’s Dallas office to Houston to the Cochran Insurance Agency, where it was countersigned by Gartner in behalf of the Houston agency, before being delivered to appellants. Cornish testified that the policy was delivered to appellants in Houston by Cochran Insurance Agency either by Gartner in person or by mail from the Cochran Agency. Cornish had never had any dealings of any kind with appel-lee in Dallas.

The billing for premiums due was sent to appellants by Cochran Insurance Agency. The premiums paid by appellants were sent to Cochran Insurance Agency.

It is our opinion that the initiation, consummation and breach, if there was a breach, of this contract occurred in Harris County, Texas. Therefore venue of the suit properly lies in Harris County under Art. 1995, Subdivision 23, V.A.C.S. Gleason v. Southwestern Sugar & Molasses Co., 214 S.W.2d 640 (Tex.Civ.App., no writ hist.); Planters Cotton Oil Co. v. Whitesboro Cotton Oil Co., 146 S.W. 225 (Tex.Civ.App., no writ hist.).

In oral argument appellee asserted that constructive delivery of the policy to appellants occurred in Dallas County (thus consummating the contract in Dallas County) when the policy was mailed in Dallas addressed to appellants. But we find no evidence that the policy was mailed in Dallas addressed to appellants. The evidence is that the policy was sent to appellee’s authorized agent in Houston, Cochran Insurance Agency, where it was countersigned pursuant to Art. 21.09 of the Insurance Code, V.A.T.S., then delivery was made in Houston to appellants.

Appellee also asserted in oral argument that the countersigning of the policy in Houston was not really essential to the validity of the policy notwithstanding the declaration in the policy that “ * * * this policy shall not be valid unless countersigned on the declarations page by a duly authorized agent” — that the only effect if appellee had failed to have the policy countersigned would have been merely to subject appellee to a penalty. However that may be, the undisputed evidence is that the policy was countersigned in Houston by ap-pellee’s authorized agent. This together with the testimony of Cornish would certainly indicate that the policy was sent to the Houston agent for countersigning in compliance with the law before being delivered to appellants.

The evidence is further undisputed that appellee never billed appellants from its Dallas office. The billing for premiums due was sent to appellants from Cochran Insurance Agency in Houston. There is no evidence that the breach of the contract, that is, failure to pay the premiums due, occurred in Dallas County.

Among other cases cited by appellee are Farm Air Service, Inc. v. Houston Fire & Casualty Ins. Co., 309 S.W.2d 510 (Tex.Civ.App., no writ hist.) and Southern Farm Bureau Casualty Ins. Co. v. Alexander, 326 S.W.2d 644 (no writ hist.). Neither of the above cases is in point.

The Farm Air Service case involved the assigned risk statute, Art. 5.76 of the Insurance Code. Premiums were paid into the “pool” at Austin and losses were paid out of the pool. Neither the facts nor the legal obligations of the parties are analogous to those in the instant case. The facts in the Southern Farm Bureau case are also so materially different from the the facts presented in this case as to make the holding there inapplicable here.

Appellants’ point on appeal is sustained. The judgment- of the trial court is reversed and the cause is remanded to the trial court with directions to sustain appellants’ pleas of privilege and transfer the cause of action to Harris County, Texas for trial.

Reversed and remanded.


author: PARKER, Justice.

text:
    Woodrow W. SCOTT, d/b/a Woodrow W. Scott Insurance Agency, Appellant, v. L. J. CONNER, Appellee.
    No. 6812.
    Court of Civil Appeals of Texas. Beaumont.
    May 5, 1966.

      Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellant.
    Clark Anderson, Lufkin, for appellee.
   PARKER, Justice.

This is a suit of L. J. Conner against Woodrow W. Scott, d/b/a Woodrow W. Scott Insurance Agency for negligently failing to provide fire insurance coverage on a house owned by Conner which Scott agreed to provide. The house was a total loss as a result of a fire. Judgment was rendered in favor of the plaintiff below against Woodrow W. Scott for $2,000.00. The latter appealed. The parties will be designated appellant or appellee or by their proper names.

Conner owned a house in Lufkin, Texas, located on property on Fair Street. He alleged it was mutually agreed by and between him and Scott that Scott would secure for Conner a policy of insurance covering the property in the amount of $2,000.-00 on or about February 25, 1961. Scott did secure a policy of fire insurance for Conner covering such property with the Great American County Mutual Insurance Company in the amount of $2,000.00, being a three-year policy with the premiums paid by Conner in advance for three years. In September of 1961 Conner received a notice from the Great American County Mutual Insurance Company cancelling the policy. Upon receipt of this notice Conner asked Scott to furnish him with similar insurance on the house; that Conner was assured by Scott and/or the agent and employee of Scott that they would provide Conner with insurance in the same amount. Conner alleged he relied upon this promise and that the unearned premium on the first policy was never returned to him until after the loss occurred to the house by reason of fire. This fire occurred on January 12, 1963 and the building was a total loss and'became a liquidated demand on Scott in the amount of $2,000.00. After the fire Conner immediately notified Scott of the loss and for the first time Scott advised Conner he had failed to secure for him a policy of insurance covering the property destroyed by the fire. All of these acts and omissions on the part of Scott were alleged to be negligent and that as a direct and proximate result of this negligence on the part of Scott, his agents, servants and employees Conner had been damaged in the amount of $2,000.00, a liquidated demand by virtue of Art. 6.13 of the Insurance Code, V.A.T.S., praying for judgment in such amount.

The affirmative defenses of Scott were: (a) that no request was made by Conner to Scott or his secretary to secure any additional insurance on the property; (b) that at no time did Scott or his secretary promise or assure in any manner Conner that he would secure additional insurance; (c) that Conner was not entitled to rely upon any assurance either actual or implied because Scott did not agree to secure other insurance for Conner; (d) that Conner was negligent in failing to attempt to secure other insurance if he desired to do so on such property, which negligence on the part of Conner was a proximate cause of any damages sustained when the building was destroyed by fire.

The case was submitted to a jury on special issues. The jury found that after September 7, 1961 and prior to the fire on January 12, 1963, Scott, his agent, servant and employee promised to provide Conner with insurance coverage on the property; that this was negligence and a proximate cause of Conner not having insurance on the property on the occasion of the fire in question; that Scott was negligent in retaining the unearned premiums due Conner before the date that such unearned premium was returned, which was a proximate cause of the failure on the part of Conner to have insurance covering the property when the fire occurred; that Conner did not fail to exercise ordinary care to determine that he had no insurance covering the property in question between September 7, 1961 and January 12, 1963.

It is undisputed: The unearned premiums referred to above were not returned until after the building was a total loss by reason of the fire of January 12, 1963. A fire insurance policy was issued by Great American County Mutual Insurance Company to Conner covering the house about February 25, 1961, with the premium fully paid for three years in advance, the amount of the policy being $2,000.00. This policy was cancelled by such company in September of 1961 and it sent the unearned premium to Scott. This unearned premium was retained by Scott until after the fire completely destroyed Conner’s house on January 12,1963. Upon receiving notice of cancellation of the policy by Great American County Mutual Insurance Company, Conner called upon the secretary of Scott, Nora McNeil, on at least two occasions before the fire occurred. The evidence is conflicting’ as to these conversations.

Conner testified that he called the secretary of Scott, Nora McNeil, and directed her to replace insurance on the building or refund his unearned premiums and her reply was, “I will have Mr. Scott take care of it for you.” On the second occasion Conner testified that Nora McNeil agreed and promised Conner that Scott would either return the unearned premiums or Conner could rely upon having fire insurance on his property. Since he was not notified by Scott that he did not have insurance and his unearned premium was not returned to him by Scott, Conner relied upon Scott having furnished him with a fire policy in the amount of $2,000.00 covering the house that burned. It was not until after the fire that Conner was advised by Scott that he placed no insurance on the building.

Nora McNeil testified that in the usual course of business of Mr. Scott, she sent policies of insurance to the insured and billed them for it. She took the information from Conner in connection with the cancelled policy and promised him that she would tell Mr. Scott about it and that they would take care of his return premiums; that she made a notation of this conversation and then “forgot to tell him about it the next Monday morning”; that they did not return the premiums to Mr. Conner because “she forgot about it”. That she had a further telephone call in connection with this matter with Conner and further testified that from time to time in the course of business she took information on the phone with respect to people desiring insurance and thereafter wrote insurance policies for them; that this was not unusual. She was Mr. Scott’s secretary and had been for about ten years. Among her duties was typing and filing. Her time was exclusively devoted to the insurance business of Scott and had so been for ten years. She answered the phone, typed and wrote policies and endorsements. From day to day she kept notes for her boss when he was not there. Working for him, she would bring him up-to-date on what had transpired in his absence. She typed his letters and had learned how to figure rates for insurance policies. She actually typed out the fact information on the policies, type of building, rate of coverage and rate analysis without help from Scott.

Scott testified Miss McNeil had been working for him twelve years and was still employed by him. That at all times pertinent to this controversy she was an employee of his. While she was working in his office and taking the calls from Conner, she was doing what she was supposed to do, being paid for her work and for her services. In his office the normal and usual practice was for her to bring matters such as the daily report to his attention. On this particular matter, she did not bring it to his attention. It was nothing unusual for a policy holder to call his secretary about his insurance or anything else pertaining to him or his policy holders, for if he was not there she was authorized to talk, give out information to them and help them in any way she could. Further details of her work and authority in the office would simply be a repetition of items showing that she had complete authority to handle the insurance business of Mr. Scott, who held her out to be his representative in all matters except he actually issued policies under his license to write insurance. Scott had obtained insurance for Conner on other properties for some time. Scott had procured insurance on similar properties to the house that burned, and some of these policies were in force at the time of trial.

Appellant Scott’s first point of error contends the trial court erred in refusing his motion for judgment notwithstanding the verdict and entering judgment based on the verdict of the jury for the reason that there is no evidence of probative value relating to any amount of money damages that Conner might have sustained by reason of any act or conduct on the part of Scott or the fire in question. The damages in this particular case are considered as a liquidated demand as though a policy of insurance was in full force and effect at the time of the loss in the amount of $2,000.00, which was the amount of insurance in the cancelled policy Scott was to replace. It is undisputed the building was a total loss and that the original policy of insurance was in the amount of $2,000.00.

Appellant has cited no authority in point. The only authorities in appellant’s brief on any point are as follows: Cleveland v. San Antonio Building and Loan Association (1949) 148 Tex. 211, 223 S.W.2d 226, 12 A.L.R.2d 781, and Worley v. Smith (1901), 26 Tex.Civ.App. 270, 63 S.W.2d 903. These are not applicable because we do have Art. 6.13 of the Insurance Code, which cannot be ignored. Appellant apparently contends that the measure of damages would he upon the same basis as though Scott had committed a negligent act which was a proximate cause of the fire, in which case the measure of damages would be the value of the house at the time of the fire, whether it be $20,000.00 or $200.00. We do not agree with this contention. As stated in A.L.R. 18, page 1214:

“It may be laid down as a general rule that a broker or agent who, with a view to compensation for his services, undertakes to procure insurance on the property of another, and who fails to do so, will be held liable for his failure to do so.”

and on page 1219:

“The measure of the liability for his failure to procure insurance is the amount that would have been due under the insurance policy, provided it had been obtained.”

The same principle is stated in Appleman on Insurance Law and Practice, Vol. 4, § 2269, page 133, and Vol. 12, § 7203, page 29S, and also in 32 Corpus Juris 1089 and 1090; 44 C.J.S. Insurance § 172. These authorities cite cases from numerous jurisdictions having in their insurance code the same provision as Art. 6.13 of the Insurance Code of the State of Texas. A similar case is that of Stevens v. Wafer, 14 S.W.2d 295 (Tex.Civ.App.1929). Appellant’s first point of error is overruled.

Appellant Scott has several other “no evidence” points of error as follows: The court committed material and prejudicial error in overruling defendant’s motion for judgment notwithstanding the verdict and entering judgment based upon the jury verdict for the reason: (a) there is no evidence in the record that the house in question was insurable at any time; (b) there is no evidence that Woodrow W. Scott could have secured insurance for any amount of money on the property in question at any time material to this lawsuit; (c) there is no evidence of any agreement between the plaintiff and defendant for plaintiff to secure any insurance of any specific sum on the property in question; (d) there is no evidence of any agreement between the plaintiff and defendant that the defendant would procure, or could procure insurance on the property in question for such a duration that such insurance would have been in force and effect on the date of the fire; (e) there is no evidence that the monies of plaintiff held by Woodrow W. Scott would have been sufficient to purchase a policy of insurance for any sum of money that would have lasted in duration up to and including the date of the fire in question; and (f) there is no evidence of probative value in this cause that insurance for any amount could have been secured from any company, whether acceptable to plaintiff or not, covering the property in question.

In considering the “no evidence” points, we have considered that part of the record most favorable to the findings of the jury as controlling and appellant’s “no evidence” points are overruled.

Appellant contends that since the secretary of Woodrow W. Scott was not a licensed insurance agent that any agreement she made with appellee to issue an insurance policy could not in law he a proximate cause of any loss to appellee or hind Woodrow W. Scott to write any insurance policy. Scott’s testimony was that she was authorized to talk to and give out information to customers and help them in any way she could. Appellee talked to Nora McNeil on many occasions, including the conversation detailed hereinabove. It appears that Scott held her out to his customers as being authorized to advise them of his decision on insurance business coming into his office. This point of error is overruled.

Appellant has points of error contending that the jury finding that Conner did not fail to exercise ordinary care to ascertain that he had no insurance covering the property in question between September 7, 1961 and January 12, 1963, and the jury finding that Conner did not fail to make such inquiry to determine if he had insurance coverage on the property in question as would have been made by a reasonable and prudent person because such jury findings are so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust and wrong. In considering these points, the entire record and all evidence has been carefully reviewed and such points of error are overruled.

Appellant contends the court erred in failing to submit a special issue to the jury inquiring as to whether or not ap-pellee ever accepted any promise of Woodrow W. Scott Insurance Agency to provide insurance coverage and under what terms on the property in question. The evidence shows that appellee’s property was to be covered by fire insurance replacing the policy cancelled. Further, appellee requested that insurance be replaced on such property. The very request to replace the cancelled policy with another company implies that the new replacement policy should be exactly like the cancelled policy as to amount and duration. Appel-lee kept the premium that would have paid for it. Paraphrasing Diamond v. Duncan, 107 Tex. 256, 172 S.W. 1100 (1915): Conner had the right to rely upon Scott’s performance of the agreement, and having failed, and the property being destroyed by fire with no insurance, Scott is liable for the loss, citing Mechem on Agency, § 476; Kaw Brick Co. v. Hogsett & Woodward, 73 Mo.App. 432; D. Thorne et al. v. Deas, 4 Johns. (N.Y.) 84; Backus v. Ames, 79 Minn. 145, 81 N.W. 766. Under the evidence, Conner was entitled to believe Scott had obtained such insurance for him. An insurance broker agreeing to obtain insurance owes a legal duty to obtain same and, if he cannot, to notify his principal of failure. Burroughs v. Bunch, 210 S.W.2d 211 (Tex.Civ.App.1948, wr.ref’d). The point of error is overruled.

The appellant contends that neither the retention of unearned premiums by appellant nor the failure to provide insurance coverage on the house was a proximate cause of appellee being without coverage. These points of error are overruled.

Finally, appellant contends that the retention of unearned premiums by appellant due to appellee could not in law constitute any action for negligence. Nora McNeil’s agreement with appellee was to either return the unearned premiums or he could rely upon having fire insurance on his property. This point of error is overruled.

Judgment of the trial court affirmed.


author: DUNAGAN, Chief Justice.

text:
    John T. ROBERTSON, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY et al., Appellees.
    No. 203.
    Court of Civil Appeals of Texas. Tyler.
    May 12, 1966.

      Jack K. Allen, Odom & Allen, Tyler, for appellant.
    James H. Hand, Dallas, Jack W. Flock, Ramey, Brelsford, Flock & Devereux, Tyler, for appellee Southwestern Bell Telephone Co.
    Jack W. Flock, Ramey, Brelsford, Flock & Devereux, Tyler, for appellee E. O. Dog-gett.
    Spruiell, Lowry, Potter, Lasater & Guinn, Tyler, for appellee Homer Lee Tucker.
   DUNAGAN, Chief Justice.

This is a damage suit for personal injuries instituted by appellant, John T. Robertson, in the 114th District Court of Smith County, Texas. Defendants below were Southwestern Bell Telephone Company, E. O. Doggett and Homer Lee Tucker. At the conclusion of plaintiff’s evidence, defendant E. O. Doggett made his motion for instructed verdict, which was considered by the court and sustained.

Trial was before a jury at the conclusion of which the trial court submitted nine Special Issues. In response to the issues submitted, the jury made the following findings:

(a) That Homer Lee Tucker caused the telephone line to break by striking the line with the cattle truck he was driving;

(b) That such conduct was not the sole proximate cause of plaintiff’s car striking the line on the highway;

(c) That Homer Lee Tucker did not fail to keep a proper lookout;

(d) That Southwestern Bell Telephone Company was not negligent in maintaining the line at the height it was so maintained; and

(e) That the occurrence was the result of an unavoidable accident.

Upon return of the jury’s verdict, all defendants made their motions for judgment and the court entered judgment that John T. Robertson take nothing. From this judgment, appellant now appeals.

For convenience, the appellees will be referred to hereafter as “Southwestern,” “Doggett,” and “Tucker.”

This cause was instituted by appellant against appellee Southwestern on December 3, 1962. Actionable negligence of Southwestern was alleged in permitting one of its telephone wires to “fall” at the intersection of State Highway No. 271 and the Old Jamestown Road located about 15 miles from the City of Tyler. Appellant alleged that he was riding as a passenger in his automobile and was driving in a southerly direction toward the City of Tyler when the telephone wire “fell” as his automobile was passing through the intersection aforesaid. Appellant further alleged that the wire caught on the rear bumper of the vehicle and in some manner jerked the vehicle, causing the alleged injuries to appellant.

On January 10, 1964, appellant filed his second amended original petition wherein he made additional parties defendant ap-pellee Doggett, appellee Tucker, and Mrs. Ralph Mauldin. Subsequently, on February 15, 1965, Mrs. Mauldin was dropped from the suit, and on May 28, 1965, appellant filed his fourth amended original petition upon which he went to trial.

A brief summary of appellant’s pleadings follows. He alleged that Southwestern, on August 15, 1962, was maintaining a telephone line along the Old Jamestown Road near its intersection with State Highway No. 271, which line furnished service to a farm house located about 1200 feet from said intersection and belonging to appellee Doggett.

According to appellant’s allegation, ap-pellee Doggett had employed Ralph Mauld-in Trucking Company to come upon his farm and haul some cattle for him and, pursuant to instructions from his employer (Mauldin), appellee Tucker drove the cattle truck into the Doggett farm. In order to get the truck into the Doggett property, it was necessary for appellee Tucker to drive it under the telephone lines owned and maintained by Southwestern. Appellant alleged that just prior to the time the line fell across the highway at the intersection to which reference has been made hereinabove, appellee Tucker drove his cattle truck under the line striking and breaking the same and causing said telephone line to be pulled down for a distance of approximately 1200 feet and to fall upon the automobile in which appellant was riding.

Appellant alleged numerous acts of negligence against Southwestern relating to the manner in which its telephone line was maintained; he alleged two acts of negligence against appellee Doggett in permitting a hump of dirt to remain in the driveway used by Tucker; and he alleged four acts of negligence against appellee Tucker relating to the latter’s conduct in driving the cattle truck under and breaking Southwestern’s telephone line. None of the allegations of appellant were made in the alternative. He alleged that his injuries resulted from a combination of all negligent acts of the three tort feasors.

Appellant first contends by his Point of Error No. 1 that “The trial court erred in refusing to allow Plaintiff to plead, either by his Supplemental Petition to his Fourth Amended Original Petition, or by a trial amendment, the theory of ‘Res Ipsa Loqui-tur’ and in denying Plaintiff’s requested special issues on ‘Res Ipsa Loquitur.’ ”

There was no dispute between appellant and appellees Southwestern and Doggett with reference to the cause of Southwestern’s line being pulled down on the occasion in question. Appellant requested the submission of an issue to the jury and obtained favorable findings thereon that Tucker caused the telephone line of Southwestern to break by striking it with the truck which he was driving into the Doggett farm. None of the appellees were acting in concert; there was no connection between Southwestern and Tucker; and there was no evidence that Southwestern had any knowledge that Tucker was driving the truck into the Doggett farm on the occasion in question. The only relationship between Southwestern and Doggett was that Southwestern furnished the Doggett farm with telephone service. The cause of Southwestern’s line falling or being pulled down was known to appellant as early as October 8, 1963, when he filed his first amended original petition. Appellant’s counsel also knew from records in his possession that Southwestern reported on August 15, 1962, that its line was pulled down by a truck belonging to Mauldin.

On May 28, 1965, the date of filing of appellant’s fourth amended original petition, he made no contention that he did not know the cause of the accident and in said amended petition he made no mention of relying upon the doctrine of res ipsa loquitur. On May 31, 1965, appellant filed his supplemental petition to plaintiff’s fourth amended original petition wherein he, for the first time, attempted to allege that Southwestern had sole control of the telephone wire and that the doctrine of “res ipsa loquitur” was applicable; but such allegations were not made in the alternative and appellant did not to any extent abandon the allegations contained in his fourth amended original petition. Southwestern, on June 7, 1965, the day the case proceeded to trial, moved to strike that portion of appellant’s supplemental petition wherein he attempted to allege res ipsa loquitur. Such motion was, by the trial court, granted. During the trial of the case, appellant never receded from his position that Tucker’s cattle truck struck and pulled down Southwestern’s telephone line. Appellant’s counsel produced proof thereof during the trial of the case. The jury found that the cattle truck of Tucker’s had in fact struck and pulled down the line belonging to Southwestern.

The appellee Southwestern contends that the doctrine of “res ipsa loquitur” was not applicable in this case. Under the doctrine, where it is shown that the defendant exclusively controlled the instrumentality which produced the injury, and, in the ordinary course of events, injury does not occur absent negligence, the occurrence of the injury itself may warrant an inference of negligence. However, Texas cases require the following elements to be present in any case wherein “res ipsa loquitur” is relied upon: (1) the injury must be of a kind which ordinarily does not occur if due care has been exercised; (2) The injury must be caused by instrumentality under the control of the defendant; (3) The injured person must be free of any reasonable contributing conduct; and a number of Texas decisions purport to require a further element, namely, (4) Evidence to explain the occurrence must be more readily accessible to the defendant than to the plaintiff. International Creosoting & Construction Co. v. Daniel, 114 S.W.2d 393 (Tex.Civ.App.), 1938, err. dism.; Alley v. Texas Electric Service Co., 134 S.W.2d 762 (Tex.Civ.App.), 1939, n. w. h.; Carothers v. Olshan, 198 S.W.2d 941 (Tex.Civ.App.), 1947, err. ref., n. r. e. Where all of the elements are present, the fact of the occurrence may warrant an inference of negligence, but does not compel it. The presumption arising from the happening is a rebuttable one. Where the plaintiff has established a prima facie case of negligence by virtue of the doctrine of res ipsa loquitur, it is encumbent upon the defendant to introduce evidence to explain, rebut or otherwise overcome the presumption or inference that the injury complained of was due to negligence. Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659. The doctrine is merely a rule of evidence and if all of the elements necessary to invoke the doctrine are present, an inference may arise against the defendant. But if the defendant comes forward and explains the cause of the occurrence, or offers some evidence to exonerate itself from negligence, the inference or presumption vanishes and plaintiff then is put to the task of alleging and proving actionable negligence against the defendant. Wichita Falls Traction Co. v. Elliott, supra; Sims v. Dallas Ry. & Terminal Co., 135 S.W.2d 142, (Tex.Civ.App.) 1939, n. w. h.

In the case at bar, the doctrine cannot be applied because appellee Southwestern was not in exclusive control of the instrumentality causing the injury. It was established by appellant himself that the instrumentality (the telephone line) was caused to fall when it was struck by a cattle truck operated by an outsider — Tucker. The law is well settled in Texas that where the evidence shows that an accident may have happened as the result of one or two or more causes, and it is not more reasonably probable that it was due to the negligence of the defendant than to any other cause, the doctrine of “res ipsa loquitur” does not apply. Benkendorfer v. Garrett, 143 S.W.2d 1020, (Tex.Civ.App.) 1940, err. dism., judg. corr.

In the case of Davis v. Castile, 257 S.W. 870, (Tex.Com.App.) 1924, it is stated as follows:

“Again, where the evidence shows that the accident may have happened as the result of two or more causes, and it is not more reasonably probable that it was due to the negligence of the defendant than to any other cause, the rule of res ipsa loquitur does not apply. * * *”

To the same effect see Montgomery-Ward & Co., Inc. v. Sewell, 205 F.2d 463, (5th Cir., 1953) (a Texas case); Worth Steel Corporation v. Gartman, 361 S.W.2d 426, (Tex.Civ.App.) 1962, writ ref., n. r. e.

The doctrine of res ipsa loquitur is never applicable where the evidence shows that the instrumentality has been meddled with by third persons. Johnson v. Texas & Pac. Ry. Co., 117 S.W.2d 864, (Tex.Civ.App.) 1938, err. dism. At page 866 of the last cited case, the court states in part as follows:

“The rule of law applicable to such a state of facts is stated by our Supreme Court in Davis v. Castile, 257 S.W. 870, as follows (page 872):
“ ‘ * * * where the evidence shows that the accident may have happened as the result of two or more causes, and it is not more reasonably probable that it was due to the negligence of the defendant than to any other cause, the rule of res ipsa loquitur does not apply. * * ’ ”

In Bonner v. Texas Co., 89 F.2d 291, (5th Cir., 1937) (a Texas case) the court states that the doctrine of res ipsa loquitur applies only when instrumentalities causing injury are shown to have been wholly in the care of the defendant and not to have been meddled with by the person injured or outsiders. See also Texas Employers Insurance Association v. Texas Compress Company, 284 S.W.2d 922, (Tex.Civ.App.) 1955, err. ref., n. r. e.; and Blassingame v. Halliburton Oil Well Cementing Company, 317 S.W.2d 111, (Tex.Civ.App.) 1958, n. w. h., wherein numerous Texas cases on this principle are collated; and Jones v. Nafco Oil & Gas, Inc., 380 S.W.2d 570, 575, (S.Ct.) 1964.

It is further held in Texas that where the plaintiff knows how an accident occurs, he is not entitled to rely upon the doctrine of res ipsa loquitur. Southland Industries, Inc. v. O. R. Mitchell Motors, 244 S.W.2d 528, (Tex.Civ.App.) 1951, err. ref., n. r. e. The Southland Industries case is directly in point with the situation now before this court in the instant case.

We sustain the action of the trial court below in the instant case in striking appellant’s plea of res ipsa loquitur. The appellant had known for many months the exact cause of Southwestern’s line falling upon the highway. Appellant not only plead the exact cause, but also offered proof in support thereof and obtained a favorable jury finding to the effect that Southwestern’s' line was struck and pulled down by the cattle truck operated by Tucker. Since appellant knew the cause of the telephone line falling upon the highway, there •was no need for him to resort to res ipsa loquitur. Moreover, by appellant’s own conclusive evidence, Southwestern was not in exclusive control of the instrumentality causing the accident and, therefore, under no circumstances could the doctrine of res ipsa loquitur be made applicable to the situation before this court. Ordinarily, when applicable, the doctrine is invoked by a plaintiff in order to prevent having an instructed verdict rendered against him. In the case at bar, the trial court submitted the case to the jury and, as against Southwestern, submitted the only issue as to negligence raised by the evidence. Clearly, appellant was not entitled to rely upon the doctrine of res ipsa loquitur under the facts of this case.

A strikingly similar case on the facts appears in Lexington Telephone Co., Inc. v. Hurt, 311 Ky. 417, 224 S.W.2d 456, (1949). In the cited case, the plaintiff was driving an automobile upon a highway in Kentucky when it was involved in a collision with a vehicle operated by a Mr. Cantrell. The impact precipitated plaintiff’s vehicle off of the highway and into a telephone pole owned by the Lexington Telephone Company. Following the accident, it was discovered that a telephone line hung down across the highway and only about two or three feet above it. It was plaintiff’s theory that the wire was down prior to the accident; that the car driven by Mr. Cantrell ran into the wire and the contact jerked his automobile over in front of plaintiff. As against the telephone company, the plaintiff attempted to rely upon the doctrine of res ipsa loquitur upon substantially the same reasoning as employed by appellant in the case at bar. The court held that where the acts of a third party are involved and where there is no positive proof concerning the position of the wire prior to the accident, the doctrine of res ipsa loquitur does not apply.

Even if it could be said that the doctrine of res ipsa loquitur was applicable in this case, the same would do no more than permit an inference of negligence against Southwestern. The burden of going forward with the evidence would admittedly then be shifted to Southwestern but when it offers proof as to the good condition of the telephone lines and proof that it had not failed to use ordinary care in the maintenance of the line, the inference vanishes and appellant is thereupon put to the task of establishing by a preponderance of the evidence actionable negligence in one or more particulars. Wichita Falls Traction Co. v. Elliott, supra; Washington v. Missouri, K. & T. Ry. Co. of Texas, 90 Tex. 314, 38 S.W. 764; and Gulf, C. & S. F. Ry. Co. v. Dunman, 27 S.W.2d 116, (Tex.Com.App.) 1930, 72 A.L. R. 90.

The evidence from Southwestern’s superintendent, Shoemaker, was ample to rebut any inference of negligence. He explained why the line fell, and therefore any inference arising from the doctrine vanished, thereby relegating appellant to the burden of establishing actionable negligence by a preponderance of the evidence.

The action of the trial court in refusing appellant’s trial amendment is further sustainable on other grounds. This cause, as hereinabove stated, has been pending since December 3, 1962. Appellant had known since October 8, 1963, when he filed his first amended original petition, the cause of the accident. He procured the oral deposition of Southwestern’s witness Shoemaker over a year prior to announcing ready for trial. He had announced ready for trial on other occasions prior to June 7, 1965, when this cause proceeded to trial. He had shown no diligence in the matter of amending his pleadings. He has not shown that the action of the trial court in refusing the amendment was an abuse of its discretion. He has shown no harm from the refusal of the trial amendment because, as is hereinabove clearly shown, this is not a case of res ipsa loquitur. Further, when the trial court refused his trial amendment, he made no motion to withdraw his announcement of ready. No error has been shown.

As stated in Coffey v. Fort Worth & Denver Railway Company, 285 S.W.2d 453, at page 458, (Tex.Civ.App.) 1955, no writ history:

“ * * * Ordinarily the allowance of a trial amendment is within the sound discretion of the court. The court’s ruling thereon is presumed to be correct and is subject to review only on a showing of abuse of discretion. A court does not abuse its discretion in denying permission to file a trial amendment when the record shows lack of diligence and that it would probably prejudice the opposite party in maintaining its defense. Westinghouse Elec. Corp. v. Pierce [153] Tex. [527,], 271 S.W.2d 422, 424. The trial court is not ordinarily required to permit amendments that would disrupt the orderly procedure and lead to interminable delay. A party whose pleading is held defective is entitled to amend his pleadings for the purpose of curing that defect, notwithstanding his previous announcement of ready, but ‘this only extends to curing by amendment his defective pleading previously filed and does not authorize him as a matter of right to plead new and independent matters * * * (and) this court will not review its action in rejecting a proffered amendment of this character unless it clearly appears that wrong or injustice has been done thereby.’ * * * ”

See also Alcazar v. Southwestern Bell Telephone Company, 353 S.W.2d 933, (Tex.Civ.App.) 1962, n. w. h., and Thomas v. Jester, 325 S.W.2d 953, (Tex.Civ.App.) 1959, n. w. h.

Appellant next contends by his Point of Error No. 2 that “The trial court erred in refusing plea number three and four of Plaintiff’s Plea in Limine, which referred to Plaintiff’s being placed in class 4 — F during World War II, and to Plaintiff’s being treated for any kind of venereal diseases because the same had no connection with the cause of action upon which he sued.”

Prior to trial, appellant filed his motion in limine seeking an order of the trial court instructing appellees’ counsel to desist from mentioning at any time the following matters : (1) That appellant was involved in a shooting difficulty approximately twenty years previous; (2) That appellant was charged with D.W.I. and various other misdemeanors relating to “bootlegging” or the sale of untaxed whiskey; (3) That the appellant was rejected as 4 — F by the Army during World War II because of “bad bloodand (4) That appellant was treated for any kind of venereal disease. The trial court sustained the motion as to the first two items, but overruled the same as to items (3) and (4). However, no evidence was offered at any time to show that appellant was classified as 4 — F by the Army although counsel did ask Bertha Johnson, appellant’s mother-in-law, whether she knew that appellant had been rejected because of such classification, and she replied that she did not know this to be true. No objection was made by appellant to such question propounded to Bertha Johnson.

With reference to whether appellant had been treated for “bad blood,” or a venereal disease, appellant himself admitted he had been afflicted with syphilis and had been taking shots therefor from the County Health Officer. Again no objection was made by appellant to such questions, although appellant’s counsel conditionally stated that he would object unless the matter was tied in with the injury made the basis of the suit. Appellant’s own physician, Dr. Theodore Taliaferro, had treated him from August 15, 1962, the date of the accident, until May, 1963, and appellant had muscle spasm in his neck and also had neuritis. Appellant admitted that he had trouble with his legs prior to the accident. Dr. Taliaferro further testified that he had examined appellant for syphilis at the time of the examination. However, Dr. Taliaferro admitted on cross-examination that if a person has latent syphilis over a long period of time, it can affect his general health and various parts of his body and account for some of his complaints. According to the physician, latent syphilis may affect a person’s walking, his nerves, or almost any part of his body. Appellant further had testified that he was in “good health” prior to the accident, but that all of his complaints emanated from the accident made the basis of the suit.

We do not believe appellant’s Point of Error No. 2 reflects any error and is therefore without merit for the following reasons :

(1) No evidence as to appellant’s 4 — F Army classification was ever offered and none is in the record.

(2) Appellant admitted his syphilitic affliction, and in view of his own testimony, there could be nothing more material than bringing out before the jury the possible causes of any physical complaints of appellant. Appellees had denied vigorously that appellant had received any injury as a result of his automobile striking the telephone line of appellee Southwestern. It was within the permissible bounds of cross-examination — not only of appellant, but also of his medical witness — to explore other reasons and causes for appellant’s complaints. This matter went to his claimed disability and could very well explain his “neuritis,” the trouble he had with his legs, and his “tired” feeling. Jones v. St. John, 178 S.W.2d 181, (Tex.Civ.App.) 1944, n. w. h. Nothing could be more relevant than the disclosure of other diseases and afflictions of appellant in this type case. It is universally held that a claimant may be fully cross-examined as to previous injuries, physical conditions, claims and actions for the purpose of showing that his present physical condition is not the result of the injury presently sued for, but was caused in whole or in part by an earlier or subsequent injury or a pre-exist-ing condition. See 69 A.L.R.2d 594; Niles v. Steiden Stores, Inc., 301 Ky. 80, 190 S.W.2d 876; Griggs v. Saginaw & F. Ry. Co., 196 Mich. 258, 162 N.W. 960; Miller v. City of New York, (1955) 286 App.Div. 1033, 145 N.Y.S.2d 295; Chicago City R. R. Co. v. Canevin, 72 Ill.App. 81; Fahey v. Clark, 125 Conn. 44, 3 A.2d 313, 120 A.L.R. 517; and Hambrice v. F. W. Woolworth Company, 290 F.2d 557, (C.C.A. 5th).

(3) The matter as to whether appellant had been treated for syphilis or whether he then had a condition of latent syphilis went to the matter of his disability, if any, or the damages, if any, to which appellant was entitled and, inasmuch as all issues of liability were answered favorably to appellees, any error — and in our opinion there is none — is harmless within Rule 434, Texas Rules of Civil Procedure.

(4) The overruling by the trial court of items (3) and (4) of appellant’s motion in limine cannot be error under the recent Supreme Court case of Hartford Accident and Indemnity Company v. McCardell, (1963), 369 S.W.2d 331, in which the Supreme Court held that the overruling of a motion in limine is never reversible error. If a motion in limine is overruled, a judgment will not be reversed unless the questions or evidence were in fact asked or offered. If they were, in fact, asked or offered, an objection made at that time is necessary to preserve the right to complain on appeal that such questions asked or such evidence tendered were so prejudicial that the mere asking or tendering should require reversal. As pointed out hereinabove, no evidence of the 4 — F classification was offered and as to appellant’s history of venereal disease, the same was highly relevant to the issues in the case, but even if this were not so, appellant did not properly preserve the error by objection to the interrogation to appellant on this matter. In any event, the matters of which complaint is made are not so prejudicial as to have caused the rendition of an improper judgment in this case. Rule 434, T.R.C.P.

Appellant also contends by his Point of Error No. 3 that “The trial court erred in sustaining Defendant’s Plea in Limine to keep Plaintiff from asking for Southwestern Bell Telephone Company’s records or from commenting on their absence, which records were necessary for Plaintiff’s prosecution of his case.”

As above stated, this cause was instituted by appellant on December 3, 1962, and prior to actual trial, the case had been set for trial nine times. On February 22, 1965, all parties announced ready for trial, but the case was not reached during that week. On June 7, 1965, at the call of the docket of the trial court for that week, all parties again announced ready and the actual selection of the jury commenced on Tuesday, June 8, 1965. Although the case had been pending for over two years and although numerous depositions had been taken, on Monday, June 7, 1965, at 8:40 a. m., appellant’s counsel procured the service of a subpoena duces tecum upon a representative of Southwestern. At 10:00 o’clock a. m. on the same Monday upon announcing ready for trial, Southwestern’s counsel moved the court to quash the subpoena duces tecum on the grounds that it would be a human impossibility for Southwestern to procure the records requested therein during the trial. Southwestern’s counsel orally advised the court that representatives of Southwestern would bring the court any and all records called for in such subpoena duces tecum, which records, if any, were in its offices in the City of Tyler, Texas, but that it would be impossible for Southwestern to procure or make a search for the vast quantity of records described or referred to in the subpoena. The following morning, all records of Southwestern pertaining to the matters sought in the subpoena were obtained from the Tyler office and given to appellant’s counsel. These constituted all the records of Southwestern which could be obtained from the Tyler office. Southwestern contended in the trial court and now contends in this court that its representatives did not have an opportunity to contact any of Southwestern’s offices in Dallas or St. Louis for the purpose of ascertaining whether the company had any of the records described in the subpoena. The records which were furnished were plats and field prints showing the location where the accident occurred, the poles in place, the date the poles were replaced, the types of poles, the distances between the poles, and all other relevant information in connection with the maintenance of Southwestern’s lines at the scene of the accident. At no time prior to Monday, June 7, 1965, did appellant’s counsel ever request any record or memorandum of any kind relating to any of the matters described in the subpoena duces tecum. The only object which appellant’s counsel ever requested that Southwestern produce consisted of a bracket of the type used at the scene of the accident. This was, in fact, furnished appellant’s counsel many months prior to trial and the same was placed into evidence upon the trial of the case. Moreover, every witness of Southwestern requested by appellant’s counsel for deposition was promptly furnished and appellant’s counsel did procure depositions in this case. There is no showing that the records and memorandum called for in the subpoena duces tecum are even in existence. Upon a hearing of the oral motion made to the trial court, Southwestern was relieved of the obligation to comply with the subpoena except as to the records available in the Tyler office and which were easily available and could be procured and furnished by the following morning. Appellant’s counsel at no time following the court’s ruling on the subpoena duces tecum moved for a withdrawal of its announcement of ready, but proceeded to trial the following morning.

Rule 177a of the Texas Rules of Civil Procedure provides for the production of documentary evidence by subpoena. By the very terms of the rule, upon motion made seasonably at or before the time specified in the subpoena for compliance therewith, the court is given the power to:

(1) Quash or modify the subpoena if it is unreasonable and oppressive, or

(2) Conditional denial of the motion to quash or modify upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the documents requested. Since the trial court excused Southwestern from compliance with the subpoena duces tecum, it evidently realized that it would have been a human impossibility for Southwestern or any other litigant to have procured the voluminous records called for in the subpoena duces tecum. In our opinion appellant had shown no diligence either in requesting or procuring the documentary evidence in this case. The rule itself contemplates that a party served with a subpoena duces tecum be given a reasonable. time within which to comply with the same. Otherwise, the subpoena becomes oppressive and the trial court not only had the right, but was under the duty to see that no party suffered under the circumstances by such action on the part of appellant’s counsel.

Although cited by appellant in his brief, the case of Parlin & Orendorff Co. v. Miller, 25 Tex.Civ.App. 190, 60 S.W. 881, 1901, writ refused, we think, supports Southwestern’s contentions in this regard. In the cited case, the plaintiff had been served with a subpoena duces tecum to bring certain books with him after he arrived in Gonzales to attend the trial. The court said:

“* * * The nineteenth assignment complains of the refusal of this charge: ‘It devolves upon the plaintiff to prove the existence of his debt at the time of the execution of the mortgage, and it is the duty of the plaintiff, in obedience to the subpoena duces tecum served on him, to produce his books of account in which he has testified that all the items constituting his debt against the defendant O. B. Robertson are kept; and his failure and refusal to produce said books in obedience to said subpoena must be accepted by the jury as proof that the said books of account, if furnished, would be adverse to the interest of the plaintiff.’ Plaintiff testified, in explanation of his not having with him the books, among other things to the fact that he lived at Waelder, 18 miles away, and was served with the subpoena after leaving there, and while at Gonzales attending this trial, and apparently not under circumstances which enabled him to have the books with him. * * * ”

The court held that the trial court properly refused an instruction upon plaintiff’s failure and refusal to produce his books of account in obedience to the subpeona duces tecum.

It is not indicated in the case last above cited how long the same has been pending prior to the issuance of the subpoena, but in the case at bar, it seems to us that by waiting over two and one-half years and after having announced ready for trial on several occasions, appellant has ' not shown diligence in procuring the records described in the subpoena. In any event, the matter rests with the discretion of the trial court and in the absence of showing an abuse thereof, the action of the trial court in this matter should be in all things sustained.

The appellant further contends by his Point of Error No. 4 that “The trial court erred in sustaining Defendant, E. O. Dog-gett’s Motion for Instructed Verdict, because from the evidence, the Jury could have found that he was negligent and that such negligence was a proximate cause of Plaintiff’s injuries.”

In determining the correctness of the trial court’s action in this regard, we must determine whether there was sufficient evidence of probative force to raise a fact issue on a material question. Sullivan v. Airhart, 336 S.W.2d 776, (Tex.Civ.App.) 1960, n. w. h.; Air Conditioning, Inc. v. Harrison-Wilson-Pearson, (1952), 151 Tex. 635, 253 S.W.2d 422. In considering such motion, the evidence must be considered most favorable in behalf of the party against whom the instruction is sought. White v. White, (1943), 141 Tex. 328, 172 S.W.2d 295; Stevens v. Karr, (1930), 119 Tex. 479, 33 S.W.2d 725. This is the rule though the evidence may be legally insufficient to support a verdict. Wallace v. Southern Cotton-Oil Co., 91 Tex. 18, 40 S.W. 399; Maryland Casualty Co. v. Morua, 180 S.W.2d 194, (Tex.Civ.App.) 1944, err. ref.; Great Atlantic & Pacific Tea Company v. Giles, 354 S.W.2d 410, (Tex.Civ.App.) 1962, err. ref., n. r. e. A peremptory instruction should not be granted if the evidence raises any material issue and such an instruction is warranted only when the evidence is such that no other verdict could have been rendered. Stevens v. Karr, supra. See also Stuckey v. Union Mortgage & Investment Company, Inc., 383 S.W.2d 429, (Tyler Court of Civil Appeals) 1964, writ refused, n. r. e.; and Jones v. Nafco Oil And Gas, Inc., supra. Applying these rules, we conclude that the trial court correctly sustained appellee Doggett’s motion for instructed verdict.

As against appellee Doggett, the appellant alleged two acts of negligence, to-wit: (1) Failing to warn the driver of the cattle truck (appellee Tucker) of an alleged “hump” in the roadway; and (2) Failing to remove a “hump” or “piling of dirt” in the roadway leading to the barn, upon which roadway the cattle truck traveled. Each of these acts of negligence was alleged to be a proximate cause of injury to appellant. Although the proof shows to the contrary, appellant alleged that the telephone line leading into Doggett’s farm house had been broken at various times before by cattle trucks and vehicles. At the close of appellant’s case in chief, appellee Doggett moved for an instructed verdict which the trial court sustained. We do not find any evidence in this record that Doggett was negligent in any respect or that any act or omission on the part of Doggett was a proximate cause of appellant’s injury, if any, on the occasion in question.

The evidence disclosed, without dispute, that the telephone line from the intersection where appellant claimed to have received his injury, extending to the little farm house owned by Doggett, had not been broken prior to August 15, 1962, although on one occasion the service drop line from Pole No. 5 leading down to the Doggett house had been repaired. However, the cattle truck did not pass under the service drop leading from Pole 5 to the Doggett house, but passed instead between Poles 4 and 5. There is not a scintilla of evidence in the record that there was a large pile of dirt in the roadway and, in fact, the testimony shows that there was no hump or pile of dirt thereon. Appellant’s exhibits do not disclose that there was anything unusual with reference to the roadway and although it may not have been level, it had so existed there a long period of time and was in good condition. Appellee Tucker had driven cattle trucks on this roadway under these lines on other occasions and had no trouble moving under Southwestern’s lines. He testified he had no complaints to make about the lines. Witness Everett likewise had no complaint with the line. He testified he had driven down the roadway on many occasions and that the wire looked high enough.

There is not any evidence in the record to the effect that Doggett placed any dirt, on the roadway or permitted a pile of dirt to accumulate. As a matter of fact, there is not even any evidence in the record to show that Doggett owned the farm. Certainly, there is not any testimony that anything had occurred which would have put Doggett on notice that there was a dangerous condition of any kind existing in the roadway or would have placed any duty upon Doggett to make any change in the roadway. There being no dangerous condition existing, there could be no duty arising on the part of Doggett to warn Tucker, or anyone else, of anything. On the occasion of the accident on August 15, 1962, the roadway appeared no different than it had on any other occasion. If there had been anything wrong with the roadway or if there had been a pile of dirt or hump thereon, it would have been just as apparent to Tucker as to Doggett. However, Tucker testified that there was nothing wrong with the roadway; that there was no hump on the roadway. Witness Shoemaker testified that there was no hump on the roadway.

Therefore, we conclude that as to the alleged negligence of Doggett that:

(1) There is not a scintilla of evidence raising an issue of negligence against Dog-gett in either respect alleged by appellant.

(2) There is no evidence that Doggett either placed or maintained a pile of dirt or hump on the roadway traveled by the cattle truck.

(3) There is no evidence that Doggett had any knowledge of any condition whereby he was under a duty to warn Tucker of any hump or pile of dirt allegedly existing in the roadway.

(4) There being no duty on the part of Doggett arising, there could be no breach of duty on his part and therefore, there could be no negligence.

If we assume that there was a pile of dirt or hump in the roadway placed there by Doggett and that Doggett had a duty to warn Tucker of the same, and that he breached such duty, the instructed verdict in behalf of Doggett was nevertheless proper because, as a matter of law, such negligence could not be a proximate cause of appellant’s alleged injury. The following principles, being well settled in Texas, are applicable:

(1) Reasonable foreseeability is an essential element of proximate cause. Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, (1896); City of Dallas v. Maxwell, 248 S.W. 667, (Tex.Com.App.), 1923, 27 A.L.R. 927; Panhandle & S. F. Ry. Co. v. Sledge, 31 S.W.2d 146, (Tex.Civ.App.), 1930, Aff. Tex.Com.App., 45 S.W.2d 1112; East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613, (1949); Paris & G. N. Ry. Co. v. Stafford, 53 S.W.2d 1019, (Tex.Com.App.) 1932; Safeway Stores v. Brigance, 118 S.W.2d 812, (Tex.Civ.App.) 1938, err. dism.; West Texas Utilities Co. v. Dunlap, 175 S.W.2d 749, (Tex.Civ.App.) 1943, n. w. h.; City of Bryan v. Jenkins, 247 S.W.2d 925, (Tex.Civ.App.) 1952, writ ref., n. r. e.; Gulf, C. & S. F. Ry. Co. v. Bennett, 110 Tex. 262, 219 S.W. 197; Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216, (1942); Uvalde Const. Co. v. Hill, 142 Tex. 19, 175 S.W.2d 247, (1943); San Antonio & A. P. Ry. Co. v. Behne, 231 S.W. 354, (Tex.Com.App.); and Hanson v. Green, 339 S.W.2d 381, (Tex.Civ.App.) 1960, err. ref.

If one’s negligence is not the immediate or direct cause, but requires an intervention of immediate or direct cause to bring about the result, it is a concurring proximate cause, imposing liability for those responsible for it only when the intervention of the immediate cause and the resulting injury could or should have been foreseen in the light of the circumstances. To find proximate cause against Doggett in this case, it would be necessary to say that by reason of the maintenance of a pile of dirt or hump in the roadway, Doggett could have reasonably foreseen that a truck would drive along the roadway, drive upon the hump, and by reason of the height of the truck, the same would strike the telephone line, causing it to be pulled down at a place nearly a quarter of a mile from Doggett’s house and that the line would fall upon a vehicle being operated upon another highway and as a result of said line’s falling, someone would be injured. Such a consequence cannot be said to have been reasonably foreseeable by Doggett.

(2) Negligence which does nothing more than furnish a condition or give rise to occasion which makes injury possible, if such injury is the result of some other cause which reasonable minds would not have anticipated, even though injury would not have occurred but for such condition, is not a proximate cause. Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60 (1935); Panhandle & S. F. Ry. Co. v. Sledge, supra; Missouri-Kansas-Texas R. Co. of Texas v. McLain, 105 S.W.2d 206, (Tex.Com.App.) 1937; Garrett v. Sinclair Refining Co., 94 S.W.2d 1218, (Tex.Civ.App.) 1936, err. dism.; Houston & T. C. R. Co. v. Gerald, 128 S.W. 166, (Tex.Civ.App.), 1910, err. ref.; Houston & T. C. R. Co. v. Maxwell, 61 Tex.Civ.App. 80, 128 S.W. 160, 1910, err. ref.; Wm. Cameron & Co. v. Thompson, 175 S.W.2d 307, (Tex.Civ.App.) 1943, writ ref., w. m.; and Dallas Ry. & Terminal Co. v. Archer, 167 S.W.2d 290, (Tex.Civ.App.) 1943, ref., w. m.

As stated in Missouri-Kansas-Texas R. Co. of Texas v. McLain, supra, 105 S.W.2d at page 208, “It is the settled law of this state that ‘a prior or remote cause cannot be made the basis of an action for damages if it does nothing more than furnish the condition or give rise to the occasion which makes the injury possible, if such injury is the result of some other cause which reasonable minds would not have anticipated, even though the injury would not have occurred but for such condition.’ ⅝ ⅝ ⅜ >i

If it can be said, and we think the evidence does not show it, that Doggett allowed a hump or pile of dirt to remain in the roadway over which the cattle truck traveled, this did nothing more than furnish the condition and if, in some remote way thereafter, injury to someone occurred, the mere maintaining of such a condition in the roadway could not be a proximate cause because it was not reasonably foreseeable that an intervening force (the cattle truck striking the telephone wire) would contribute to or cause such an injury as that claimed by appellant. From the mere maintenance of a hump in the roadway, it could not have been reasonably anticipated by Doggett that an injury such as appellant claims would result a quarter of a mile away in the manner in which it did occur.

(3) Foreseeability as an element of proximate cause does not include consequences which arise from unusual or extraordinary occurrences. City of Dallas v. Maxwell, supra; Trinity & B. V. Ry. Co. v. Blackshear, 106 Tex. 515, 172 S.W. 544, L.R.A.1915D, 278; International-Great Northern R. Co. v. Lowry, 132 Tex. 272, 121 S.W.2d 585; Missouri-Kansas-Texas R. Co. of Texas v. McLain, 133 Tex. 484, 126 S.W.2d 474; and Moody v. Clark, 266 S.W.2d 907, (Tex.Civ.App.) 1954, writ ref., n. r. e.

In the Moody case, it was alleged that one of the defendants had negligently left some lumber in a street near the curb. An automobile was parked nearby and two children in the automobile, in attempting to manipulate the automobile, caused it to suddenly and violently move forward running upon the lumber and over the curb, causing damages. The court held that leaving the inert lumber in the street near the curb was a mere condition upon which the active negligence of the children operated, and that the lumber itself did not in any sense cause the accident and any negligence in leaving the lumber in the street could not be a proximate cause of the plaintiff’s damages. The Moody case is closely analogous to the case now before this court if we assume that Doggett permitted a pile of dirt or hump to remain in the roadway.

(4) An intervening cause will be regarded as the proximate cause, and first cause as too remote, where the chain of events is so broken that they become independent and the result cannot be said to be the natural and probable consequence of the prior cause or one which ought to have been anticipated. 65 C.J.S. Negligence § 111, page 685; City of Waco v. Teague, 168 S.W.2d 521, (Tex.Civ.App.) 1943, n. w. h.; Cox v. Ekstrom, 163 S.W.2d 845, (Tex.Civ.App.) 1942, writ ref., w. m.; Reeves v. Tittle, 129 S.W.2d 364, (Tex.Civ.App.) 1939, err. ref.; English v. Terry, 85 S.W.2d 1063, aff. 130 Tex. 632, 112 S.W.2d 446; North American Acc. Ass’n v. Adams, 32 S.W.2d 525, (Tex.Civ.App.) 1930, n. w. h.; City of Waco v. Branch, 8 S.W.2d 271, (Tex.Civ.App.) 1928, err. ref.; Magnolia Petroleum Co. v. Cocke, 3 S.W.2d 139, (Tex.Civ.App.) 1928, err. ref.; and Garner v. Prescott, 234 S.W.2d 704, (Tex.Civ.App.) 1950, n. w. h.

It is our conclusion that even if there had been a pile of dirt or hump in the roadway and even if it was left there under the circumstances as to constitute negligence, the same could not be a proximate cause of appellant’s injury, as alleged, because (a) the type of injury sustained by appellant one quarter of a mile from the premises of defendant was not reasonably foreseeable to defendant, and (b) the pile of dirt or hump was not in fact a cause of appellant’s injury because of the intervening agency of Tucker’s cattle truck striking the telephone line, thereby causing it to be pulled down at the intersection where the accident occurred. Foreseeability and causation are two necessary elements of proximate cause. Hanson v. Green, supra; Biggers v. Continental Bus System, Inc., 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359.

Appellant, by his final Point of Error No. 6, contends that “The trial court erred in submitting the issue of unavoidable accident to the jury because said issue was not raised by the evidence in the case.” The jury by its verdict exonerated appellee Southwestern and appellee Tucker of negligence. “Unavoidable accident” was submitted by the court to the jury in Special Issue No. 6-A. The term was properly defined. See Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 1952. The evidence was such that the jury could well have believed that although Tucker’s truck struck the line, this conduct was not negligence because, he had been under the line on previous occasions without coming in contact with the line. The evidence showed that where Homer Lee Tucker went under the line was about 1200 feet from the point where the line was pulled loose over the highway. There were four telephone poles between these two places and the wire was so installed that it would slip on the connections at these four poles.

There was no evidence as to the height of the wire over the driveway where the cattle truck apparently hit it prior to this accident. There was testimony that the line was broken at this point on the occasion in question and that after it was spliced back together, it was measured and found to be at a height of 12 feet and 10 inches.

The height of the truck being driven by Homer Lee Tucker was established at 13 feet 4 inches. The law permits a truck to be 13 feet and 6 inches.

The evidence also shows that Homer Lee Tucker had driven this same truck under the wire at the same place on several previous occasions and that he had not hit the wire so far as he knew. Another witness, Billy Don Everett, testified that he had driven this same truck under the same wire on prior occasions without hitting the wire so far as he knew.

Tucker could not say whether his truck struck the line, but is is apparent that it did and the jury so found; the jury could well have believed that such conduct on his part did not constitute negligence. Moreover, it was stipulated that the telephone line from the intersection where the accident occurred to Pole No. S had never been broken prior to August 15, 1962. There was no evidence of any defect in Southwestern’s line or the manner in which the same was maintained and there was an absence of any evidence that Southwestern had any knowledge or notice that the line was in any way defective or that Tucker was driving his cattle truck thereunder on the date in question.

We think that under the facts and circumstances of this case the issue of unavoidable accident was clearly raised by the evidence and the court properly submitted the issue thereon to the jury. However, if there was error in the submitting of the issue, which we do not so hold, it was harmless because the jury did not find primary negligence against appellee Southwestern or appellee Tucker. Leatherwood Drilling Company v. TXL Oil Corporation, 379 S.W.2d 693, (Tex.Civ.App.) 1964, writ refused, n. r. e.; Webb v. City of Lubbock, 380 S.W.2d 135, (Tex.Civ.App.) 1964, writ refused, n. r. e.; Adkins v. Texas & P. Ry. Co., 233 S.W.2d 956, (Tex.Civ.App.) 1950, err. ref.; Nelson v. Dallas Railway & Terminal Company, 302 S.W.2d 436, (Tex.Civ.App.) 1957, writ ref., n. r. e.; and Smith v. Morgan, 235 S.W.2d 938, (Tex.Civ.App.) 1950, err. dism.

Appellant by his Point of Error No. 5 complains that the court committed error in refusing to submit numerous Special Issues requested by appellant on the negligence of appellees Southwestern and Tucker. We have carefully examined appellant’s Point of Error No. 5, find it to be without merit, and accordingly same is overruled.

Finding no reversible error, the judgment of the ⅛⅛1 court is affirmed.


author: ARCHER, Chief Justice.

text:
    Robert S. CALVERT et al., Appellants, v. YOAKUM INDUSTRIES, INC., Appellee.
    No. 11402.
    Court of Civil Appeals of Texas. Austin.
    May 11, 1966.
    Rehearing Denied June 8, 1966.

      Waggoner Carr, Atty. Gen., Hawthorne Phillips, 1st Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., H. Grady Chandler and Kerns B. Taylor, Asst. Attys. Gen., Don Bishop, Comptroller’s Office, Austin, for appellants.
    Guittard, Henderson, Jones & Lewis, O. F. Jones III, Victoria, for appellee.
   ARCHER, Chief Justice.

This suit was filed by appellee for the recovery of certain franchise taxes paid by it under protest pursuant to Article 1.05, Title 122A, Taxation-General, Vernon’s Ann. Revised Civil Statutes of Texas, to appellant Comptroller, such taxes being claimed due from 1959 through 1964 under Article 12.01, et seq., Title 122A, Taxation-General, Vernon’s Ann.R.C.S., of Texas. Appellee contended that the dividends received by it during the tax years in question from foreign corporations or other entities as the result of its business investment in intangibles (stocks, bonds, etc.) owned and held in Texas did not constitute “business receipts within Texas” within the meaning of the franchise tax allocation formula of the 1959 Amendment, Art. 12.02, Title 122A, Taxation-General, Vernon’s Ann.R.C.S. of Texas. Appellants contended that the statute as amended in 1959 for the first time set out definite guidelines for business receipts from both tangibles and intangibles, and by the use of its language under Section (d) of said Art. 12.02, “[a]ll other business receipts within Texas,” such statute clearly and unambiguously brought such receipts from intangibles within its franchise tax formula. Both appellants and appellee presented their motions for summary judgment based upon the undisputed facts developed in the record and under their respective legal contentions, and the trial judge granted appellee’s said motion and denied appellants’ motion, entering judgment accordingly on October 19, 1965, upon which date appellants duly excepted to the judgment and duly gave notice of and perfected this appeal.

Appellee’s position is that the 1959 re-codification of the taxation laws of the State of Texas did not change the meaning or intent of the previous franchise tax statute.

The appeal is founded on five points, separately presented, but closely related, and are that the court erred in granting appel-lee’s motion for summary judgment, on the grounds that dividends received as a domestic corporation from foreign corporations or other entities as the result of its investments in intangibles, owned and held in Texas did not constitute business receipts in Texas within the meaning of the franchise tax allocation formula, and that ap-pellee’s activities as a domestic corporation were in effect that of a personal holding company and did not constitute the doing of business in Texas so as to require the inclusion of its dividend receipts from foreign corporations in the franchise tax allocation formula of the 1959 amendment, Art. 12.02, and in overruling a special exception to plaintiff’s motion for judgment, because such exception was directed to the affidavit which made a conclusory statement that appellee was a personal holding company, because such was not set out in the protest letter, and because appellee had waived its contention that it was a personal holding company and required to report its dividend receipts, because appellee failed to plead such that it was such a holding company, and the court erred in denying appellants’ motion for judgment because the stock dividends received, are reportable. Appellee asserts that the Legislature in re-codifying the franchise tax statute in 1959, did not change the meaning as well as the operation of the law, and appellee’s business activities are not such as to bring it within the application of the franchise tax statute

We have this day decided Calvert et al. v. Humble Oil & Refining Company, 404 S.W.2d 147, in which it was held that the income from foreign corporations, or other entities received in Texas did constitute business receipts within Texas, within the meaning of the franchise tax allocation formula of the 1959 Amendment, Art. 12.02.

We believe that such income and that the receipts should be included in the numerator of the franchise tax formula.

Art. 12.02 was enacted and became effective September 1, 1959 as an amendatory act, “revising Statutes levying the * * * corporation franchise tax * * ⅜ ”, and was enacted as a change in the statute, and to increase the revenue of the State from this source.

American Surety Co. of New York v. Axtell Co., 120 Tex. 166, 36 S.W.2d 715.

We believe that the Comptroller’s present construction of Article 12.02 is justified and not erroneous, and is reasonable.

We believe that appellee’s personal holding is doing business in Texas and receipts from its intangibles are allocated to Texas.

The tax is levied on the privilege granted by the State to a corporation to do business in the State. Riveroaks Development Corp. v. Shepperd, Tex.Civ.App., 246 S.W.2d 236, err. ref.; First Bank Stock Corporation v. State of Minnesota, 301 U.S. 234, 57 S.Ct. 677, 81 L.Ed. 1061.

The judgment of the trial court is reversed and judgment rendered that appellee take nothing.

Reversed and rendered.


author: WALTER, Justice.

text:
    Ray BARRINGTON, Appellant, v. Robert Earl ADAMS, Appellee.
    No. 4049.
    Court of Civil Appeals of Texas. Eastland.
    May 13, 1966.
    Rehearing Denied June 3, 1966.

      Bryant, Glenn & Thomas, Allen Glenn, Abilene, for appellant.
    McMahon, Smart, Sprain, Wilson & Camp, John P. Camp, Abilene, for appellee.
   WALTER, Justice.

Ray Barrington filed suit against Winters Construction Company, R. A. Long and Robert E. Adams for the wrongful death of his wife resulting from an automobile collision. The suit against Robert Earl Adams was severed from the plaintiff’s suit against the other parties. On April 22, 1965, Adams, his sister and Mrs. Ray Barring-ton were on their way to San Angelo to a funeral at the time of the unfortunate collision. They were traveling in Mr. Adams’ 1963 Falcon. Mrs. Barrington was riding in Mr. Adams’ car as his guest. She was killed as a result of the collision. Her husband filed suit against Adams and alleged that, Adams was driving his automobile in heedless and reckless disregard of the rights and safety of others in that he failed to keep a proper lookout; was driving on his left hand side of the highway; failed to apply his brakes; failed to turn to his right and turned to the left into a pickup.

Adams’ motion for a summary judgment was granted and Barrington has appealed. He contends that when we consider the record in the light most favorable to him we should find that there was a material disputed fact issue relating to Adams’ gross negligence under Article 6701b, Vernon’s Ann.Civ.St.

In Great American Reserve Insurance Company v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, at page 46 (Sup.Ct.1965) the court said:

“This is a summary judgment case; and in answering the above question, we must follow certain rules laid down by this Court. Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat’l. Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup.1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954).”

Adams was proceeding South on the highway between Tuscola and Ovalo. R. A. Long was proceeding in the opposite direction in a Chevrolet pickup. Mrs. Wyche, driving a Lincoln, while proceeding south on the highway noticed Long’s pickup coming over a rise in the road and looked in her rear view mirror and noticed Adams’ car behind her. He was straddling the center line when she first saw him and was about one half mile behind her. She then pulled over on the improved shoulder of the highway, which left practically all of the right hand lane clear. She slowed down to about forty miles per hour “when he got up there to me, thinking he would go around.” Instead of going around her, Adams slowed down and drove alongside Mrs. Wyche. During this time the Long pickup had pulled over as far as possible on his side of the road. After Long pulled over to his side of the road and Mrs. Wyche was on the shoulder on her side, Mrs. Wyche thought they could all get by and she paid no more attention to Long. After Adams had pulled up alongside Mrs. Wyche, he suddenly turned to his left into Long’s pickup. Adams was on his left hand side of the road, traveling about 55 or 60 miles per hour, when he saw the pickup. Adams did not see the pickup until he was right on it and he “hit the foot-feed and tried to go to the borrow ditch on the left.” Long first saw Adams when Adams was about sixty feet away driving across the highway in Long’s lane. Long neither turned left nor right and did not apply his brakes. He said, “Well, the only thing that I know, I just froze to the wheel, and I tried to hold it straight to keep from going into a skid.”

Appellant says: “In the present case, we have several circumstances which positively point toward conscious indifference by Robert Earl Adams to the safety of others, i. e. his persistence in driving astraddle the center line on a known busy highway; driving up beside the Wyche vehicle going his same direction and slowing down and pacing it; passing the Wyche vehicle when another vehicle was in the other lane in plain sight in broad, open daylight; in refusing or persistently failing to look down the highway to see if it was clear of traffic; and finally in turning to the left instead of the right (where he had room to avoid the collision) thereby turning the Adams vehicle so as to expose his guest, Rosalie Barring-ton, to sudden death.”

Under the pleadings there can be no liability against Adams unless Mrs. Barring-ton’s death was caused by his heedlessness or reckless disregard of the rights of others.

“This may be shown by a continued or persistent course of conduct evidencing an entire want of care resulting from a realization of danger to the rights of others and a conscious indifference to such rights, safety and welfare of the persons affected. Bernal v. Seitt, 158 Tex. 521, 313 S.W.2d 520; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571. It may also be established by evidence of an act of such quality or kind of conduct as to show that the driver was consciously indifferent to the rights or welfare of his passenger as well as others. Fancher v. Cadwell, 159 Tex. 8, 314 S.W.2d 820; Adams v. McHam, Tex. Civ.App., 310 S.W.2d 145, ref. n. r. e.” Montgomery v. Campbell, 362 S.W.2d 658 (Tex.Civ.App., 1962, writ ref. n. r. e.).

One of the cases relied upon by appellant in support of his contentions is Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952). In Sheffield Div. Armco Steel Corp. v. Jones, 376 S.W.2d 825, (Sup.Ct.1964), the court said:

“The court in that case refers to our decision in Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, and says we there held ‘that a combination of acts of ordinary negligence may, under certain circumstances, amount to gross negligence.’ The opinion does not stand for that proposition.”

In Bullock v. Atlantic Refining Company, 289 S.W.2d 618 (Tex.Civ.App.1956, writ ref.). Chief Justice Hamilton said:

“Appellants rely principally on the case of Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 195. We will not review the facts in that case, but suffice it to say that the court found some evidence that there was a continued and persistent course of conduct on the part of the driver of the automobile, with realization of the danger involved, sufficient to raise a jury issue of a conscious indifference to the rights of his guests.”

The cases relied upon by appellant are distinguishable from the facts in this case. In Burt v. Lochausen, the court said:

“There are certain facts which show only momentary thoughtlessness, inadvertence, or error of judgment alone, or show only ordinary negligence which, as a matter of law does not constitute gross negligence.”

We hold that the facts presented show only ordinary negligence and, as a matter of law, do not constitute gross negligence under the guest statute.

The judgment is affirmed.