author: COLLINGS, Justice.

text:
    Ira C. LITTLE, Sr., Appellant, v. Delphia D. DEATON et al., Appellees.
    No. 4159.
    Court of Civil Appeals of Texas. Eastland.
    May 19, 1967.

      Jones, Barnes, Watkins & Gay, W. Newton Barnes, Dallas, for appellant.
    Cantey, Hanger, Gooch, Cravens & Scarborough, R. Daniel Settle, Ft. Worth, for appellees.
   COLLINGS, Justice.

Ira C. Little, Sr., an alleged judgment creditor and assignee of Charles W. Deat-on, brought suit against Delphia D. Deaton, individually and as independent executrix of the estate of C. N. Deaton, deceased, and as trustee of the trusts created in his will for the benefit of his four children, one of whom is Charles W. Deaton. Plaintiff sought a declaratory judgment construing said will, the extent of Charles W. Deaton’s interest, if any, in said estate or trust, and for recovery of such interest to the extent of $30,000.00, plus interest. Plaintiff alleged that the will of C. N. Deaton, deceased, which appoints his wife, Delphia D. Deaton, independent executrix, directs payment of the expenses of his terminal illness, accrued debts, expenses of administration and applicable taxes, and devised to his wife as trustee any remaining property, directing that “after taking into consideration any unequal advancements or loans heretofore made to my children”, the trustee shall divide said property into four equal shares one for each of said four children. By an amended pleading plaintiff alleged that Delphia D. Deaton had subsequent to the death of her husband paid certain sums to or for the benefit of Charles W. Deaton in derogation of the rights of the plaintiff and sought judgment against the estate of C. N. Deaton, deceased, and Delphia D. Deaton, jointly and severally for $21,279.41. Answers were filed by Delphia D. Deaton and all of the children of C. N. Deaton, deceased, except Charles W. Deat-on. Mrs. Delphia D. Deaton filed a motion for summary judgment with affidavits attached stating the value of the distributable estates, the loans or advancements to each of the four children, showing that after taking into consideration the unequal advancements and loans to Charles W. Deat-on, that the said Charles W. Deaton had no interest in the estate of C. N. Deaton, deceased, or the trust created by his will. Delphia D. Deaton further stated under oath that any monies paid by her to or for the benefit of Charles W. Deaton after the death of C. N. Deaton, deceased, were paid from her separate estate and property. The plaintiff filed an answer to Mrs. Deaton’s motion for summary judgment and also filed a motion for summary judgment. Summary judgment was rendered by the court that plaintiff, Ira C. Little, Sr., take nothing. He has appealed.

The record shows that C. N. Deaton died on August 26, 1961, and was survived by his wife Delphia D. Deaton and four children, to-wit; Pauline Bell Pennock, Charles William Deaton, Robert Dwight Deaton and Jack Lenuel Deaton. He left a will which was probated in the County Court of Palo Pinto County. It was declared in the will that all of the testator’s property was community property of his marriage to Delphia D. Deaton, who was appointed independent executrix of his estate. The will devised to her as trustee any of his property remaining after the payment of debts, expenses of administration and applicable taxes. The devise to the trustee was as follows :

“Section 1. After taking into consideration any unequal advancements or loans heretofore made to my children, this bequest shall be divided into four equal shares and one such share shall be held in trust for each of my four children.
Section 2. My Trustee may accumulate or pay all or any part of the income of each trust estate to the beneficiary or beneficiaries thereof as she may determine in her absolute discretion. My Trustee may also distribute any portion of the corpus of each trust estate to any beneficiary or beneficiaries thereunder as she may determine in her absolute discretion.
Section 3. Upon the death of my wife, the principal and accumulated income, if any, of the above described trusts shall be distributed to the beneficiary of each such trust, or as such beneficiary may have appointed or designated in said beneficiary’s will.”

It was alleged by appellant that he had secured a judgment against Charles W. Deaton for $30,000.00, plus interest, payable out of the interest of said Charles W. Deaton in the estate of C. N. Deaton, deceased, or the trust created by the will of said C. N. Deaton, deceased; that a writ of attachment was thereafter served on ap-pellee, Delphia D. Deaton, on January 19, 1962, and that Charles W. Deaton assigned $30,000.00 of his interest in the estate to appellant.

Appellee, Delphia D. Deaton, in addition to other pleadings, filed a motion for summary judgment attaching thereto her affidavit and the affidavit of William I. Mur-rell, an accountant, that after payment of all expenses of last illness, funeral, applicable faxes, debts and expenses of administration, the estate of C. N. Deaton, deceased, had a value of $210,656.74. It was further stated in said affidavits that advancements or loans made to C. N. Deaton’s four children prior to his death were as follows:

Jack L. Deaton.$ 65,235.11 Charles W. Deaton_ 134,362.70 Robert D. Deaton. 71,944.34 Pauline Bell Pennock .. 20,000.00, and

that after taking into consideration these advancements or loans no part of the estate of C. N. Deaton was distributable to or for the benefit of Charles W. Deaton in trust or otherwise.

Appellant urges points contending that the court erred in granting appellees’ motion for summary judgment and in refusing to grant summary judgment for appellant asserting that he has acquired a present vested interest in the trust estate of Charles W. Deaton to the extent of $30,000.00; that to the extent of $30,000.00 he has succeeded to the interest of said Charles W. Deaton in the estate of C. N. Deaton and the trust created in the will for his benefit. Appellant says that a present vested interest has been validly assigned to him to the extent shown.

Appellees agreed that appellant’s claim stands in the same legal position as that of Charles W. Deaton before the fixing of the attachment, the entry of the judgment and the execution of the assignment. Appellees assert, however, that even if, after taking into consideration the unequal advancements or loans, there remained any property in trust for Charles W. Deaton, neither Charles W. Deaton nor his assignee appellant have any present right thereto; that under the terms of the will the beneficiaries are entitled to the corpus and accumulated income, if any, only upon the death of Del-phia D. Deaton; that, therefore, neither Charles W. Deaton nor his assignee, appellant, can demand a present distribution of any assets of the estate or trust. Appellees are correct in the contention that neither Charles W. Deaton nor appellant can now recover any portion of the corpus of the estate or accumulated income. Appellant, however, does not seek such relief but seeks only a declaratory judgment establishing his right to the first $30,000.00 in money or property that may be paid or distributed from the estate to the said Charles W. Deaton, and that he have judgment against appellee Delphia D. Deaton for the sum of $21,279.41, which appellant asserts she has already paid to the said Charles W. Deaton from said trust estate.

Vernon’s Ann.Tex.Civ.St. Article 2524 — 1, Section 2 provides that:

“Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a Statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, Statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”

Although appellant had no immediate right to demand distribution, he did have a vested interest in the estate if Charles W. Deaton had such an interest. 90 C.J.S. Trusts page 80; Schmidt v. Schmidt, Tex.Civ.App., 261 S.W.2d 892 (Ct.Civ.Apps. 1953, writ ref.). Where the cestui que trust has acquired a present vested interest in the estate, such interest maybe levied on and alienated. Estes v. Estes, 267 S.W. 709 (Com.Apps.1924, opinion adopted by Supreme Court); Kelly v. Womack, 153 Tex. 371, 268 S.W.2d 903 (Sup.Ct.1954). Also, contrary to appellees’ contention appellant had a justiciable interest which entitled him to institute and prosecute this suit. Article 2524-1, supra, supports a determination of his rights by declaratory judgment.

In other points appellant contends that the court erred in granting appellees’ motion for summary judgment because there were genuine issues of material fact concerning the value of the estate in question and the amount of the loans and advancements made to Charles W. Deaton by C. N. Deaton, deceased. We cannot agree with appellant’s contention that the material advancements and loans are limited to those made prior to the date of the will. The advancements and loans contemplated are those made at any time before the death of C. N. Deaton. Provisions of a will with reference to the estate speak and take effect as if the will had been executed immediately before death of the testator. Henderson v. Ryan, 27 Texas Reports, page 670. Neither can we agree with appellant’s contention that the advancements and loans, if any, are to be charged against the community estate of C. N. Deaton and Delphia D. Deaton. A testator has the right to direct in his will that stated debts be deducted from the share granted to a beneficiary. That, in effect, was the provision of the will here under consideration. Such a provision is effective even though the debt is barred by the statute of limitation. 96 C.J.S. Wills pages 1022-1026.

Summary judgments, however, are proper only when there is no disputed material fact issue and the burden of establishing the absence of such an issue is upon the movant. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (Sup.Ct.1952).

To be entitled to a summary judgment appellee had the burden to establish the value of the distributable estate of C. N. Deaton, deceased, and the amount of advancements and loans to each of his children. The parties apparently agree that these are material fact issues in the case. The question is whether or not they have been established by appellees. To establish the value of the estate and the amount of the advancements and loans, in such manner as to entitle her to judgment appellee relies upon affidavits by herself and William I. Murrell, who was and has been the bookkeeper for testator and appellee since 1952. Appellee and her bookkeeper were both interested witnesses and the general rule is that the testimony of an interested witness does no more than raise a fact issue to be determined by the jury. This is not sufficient to support a summary judgment. See James T. Taylor, etc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371 (Sup.Ct.1960). An exception to the general rule is applicable when the testimony of the interested witness is clear, direct and positive and there are no circumstances tending to discredit or impeach such testimony, and the exception is particularly applicable in cases where the opposite party has means and opportunity to disprove the testimony, if untrue, and fails to do so. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Sup.Ct.1965). Under the record in this case the exception is not applicable. The record shows genuine issues of material facts concerning the value of the estate, the amount of the loans and advancements to the children in question, and whether the payment of $21,279.41 by appellee to Charles W. Deaton was from the estate of C. N. Deaton, deceased. The court erred in granting appellees’ motion for summary judgment. We overrule appellant’s point contending that the court erred in not entering summary judgment for him.

The judgment is reversed and the cause is remanded.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    Israel ROSENFIELD et al., Appellants, v. POLLOCK REALTY COMPANY et al., Appellees.
    No. 16924.
    Court of Civil Appeals of Texas. Dallas.
    June 16, 1967.

      G. Dennis Sullivan of Goldberg, Alexander & Baker, Dallas, for appellants.
    Dan Rogers, J. Claude Jackson, Jr. & John W. Copeland of Thompson, Knight, Simmons & Bullion, Dallas, for appellees.
   DIXON, Chief Justice.

Appellants Israel Rosenfield and Phillip Rosenfield filed suit against appellee Pollock Realty Corporation and two other defendants, alleging breach of a contract to purchase land and seeking recovery of $20,000 which sum has been held in escrow since the signing of the contract of sale. The two other defendants have been dismissed from the suit and are not concerned in this appeal.

Appellee filed a cross-action asking that the escrow money be refunded.

On February 5, 1965 the parties entered into a written contract whereby appellants agreed to sell and appellee agreed to purchase certain industrial property in the City of Dallas for a consideration of $800,000, of which sum $20,000 was placed in escrow with a title company by appellee. This money was to serve as liquidated damages in the event of breach of contract by appellee.

The contract provided that at time of closing appellants would convey to appellee good and marketable title to the property free and clear of all encumbrance except those named in the contract.

The closing date was originally set for February 26, 1965, but by mutual agreement was extended to March 1, 1965, and later to March 9, 1965. Appellants dispute that they agreed to the last extension.

On March 8, 1965 by letter' appellee gave appellants notice that pursuant to the terms of the contract it had elected to terminate the contract of sale because of defects in title, and requested that the $20,000 deposited in escrow be refunded.

Thereafter on April 12, 1965 appellants sold the property to another party for a consideration of $790,000. They complain that they had to pay a commission of $10,000 to the real estate broker who had procured the contract with appellee.

In a nonjury trial judgment was rendered against appellants and in favor of appellee awarding a refund to appellee of the $20,000 escrow money plus interest.

Appellants have briefed twelve points of error in which they assert that the court erred in finding (1) that appellee terminated the contract because of the alleged title defects; (2) that water from the property in question flows toward the adjacent land of Industrial Properties Corporation; (3) that appellants on sale to Cateo, a Leland Fikes corporation, conveyed less than they agreed to convey to appellee; (4) that there is no evidence that appellants tendered to appellee an owner’s title policy covering the property; (5) that there was no evidence that appellants furnished to appellee a survey acceptable to the title company as required by the contract; (6) that the closing date was extended to March 9, 1965 ; (7) that the agreement pertaining to water flow was not a restrictive covenant or condition in connection with the creation of any addition or subdivision of which the property is a part, and (8) was an encumbrance which was not permitted or excepted under the contract; (9) the lease between Liberty Steel Company and St. Louis Terminal Field Warehouse and (10) the Industry Track Agreements in favor of C. R. I. & P. Railway Company were not encumbrances permitted or excepted under the contract; (11) that appellants were unable to convey the property free and clear of any and all encumbrances other than those permitted under the contract. The twelfth point is that the court erred in holding that appellee was entitled to recover the escrow money.

We think the evidence supports the court’s finding that appellee terminated the contract on March 8, 1965. The letter of notification so states. It is true that the two attorneys for the parties made some effort thereafter to cure the defects in title, but the notice of termination was not withdrawn. Moreover, appellants obviously accepted the fact of termination for this is not a suit for specific performance; and one month after receiving the notice appellants sold the property to another purchaser. The first point is overruled.

There is evidence that water from appellants’ property flows toward the adjacent land of Industrial Properties Corporation. There is evidence to the contrary, but in the face of conflicting testimony the court’s finding is binding on this court. The second point is overruled.

There is evidence that valuable industrial machinery was attached to the real estate in such manner as to make it a part of the realty. When appellants sold the property on April 12, 1965 to the other purchaser this machinery by express terms was not included in the sale. The court properly found that appellants conveyed to Cateo, a Leland Fikes corporation, less than they had agreed to sell appellee. The third point is overruled.

The deed prepared by a title company listed several encumbrances and burdens to which the title was subject which encumbrances and burdens were not among those listed as permitted and excepted in the contract of sale. We find no evidence of a tender of a title policy on a deed which did not include these additional encumbrances. The fourth point is overruled.

Appellants argue that “The survey would have to have met the approval of the title company otherwise it would not have issued the title policy.” As we stated above there is no evidence that a deed was issued or tendered which listed only the permitted or excepted encumbrances. So there was no title policy tendered on a deed which complied with the contract. Anyway, appellants’ conclusion as to what the title company would not have done is speculative and not evidence of a material fact. The fifth point is overruled.

On March 1, 1965 appellee refused to close the contract of sale because of defects in title. On March 3, 1965 appellants by their attorney wrote a letter to appellee disputing the alleged title defects and requesting reply from appellee “to arrive at our office not later than 10:00 A.M., Tuesday, March 9, 1965.” On March 30, 1965 appellants in another letter reviewed prior events and stated that in the letter of March 3, 1965 “ * * * we requested a closing at 10:00 o’clock A.M. on Tuesday, March 9, 1965, * * Thus appellants’ own interpretation of their letter of March 3, 1965-was that it in effect set a new closing date for March 9, 1965. The sixth point is overruled.

Appellants’ seventh to eleventh points inclusive really get to the heart of this controversy.

Among the principal defects alleged is a “Water Diversion Agreement” between appellants and Industrial Properties Corporation, former owner of appellants’ property and still owner of adjacent property. Under the terms of this instrument appellants agreed (1) that all water and storm drainage falling on or running over across appellants’ property would be so regulated and controlled as to flow in certain specified drainage routes and (2) not on, under or across the adjacent land of Industrial Properties Corporation; (3) appellants and their successors and assigns released and forever discharged Industrial Properties Corporation, its successors and assigns, from any liability from filling its lands, from the construction of buildings and other structures thereon and from the preventing of storm or rain waters or drainage of any kind from flowing from appellants’ property on, under, across or over Industrial Properties Corporation’s land; and (4) the “Water Diversion Agreement” was to run with the land.

By entering into the above agreement appellants parted with valuable rights and placed a heavy burden on the land and its present and future, owners. Industrial Properties Corporation and its successors are permitted by the agreement to divert in various ways the flow of storm and rain water which would naturally flow from appellants’ property to the corporation’s property; and it may do so free of liability though the result might be to cause the water to back up on appellants’ land.

We think the Water Diversion Agreement represents an outstanding interest in land—an encumbrance in favor of Industrial Properties Corporation. Lunt Land Corp. v. Stewart Title Guaranty Co., 342 S.W.2d 376 (Tex.Civ.App., Fort Worth 1961, rev’d on other grounds, 162 Tex. 435, 347 S.W.2d 584); Levine v. Turner, 264 S.W.2d 478 (Tex.Civ.App., El Paso 1954, writ dism’d); Newman v. Hasslocher, 242 S.W.2d 822 (Tex.Civ.App., San Antonio 1951, no writ); Clements v. Taylor, 184 S.W.2d 485, 487 (Tex.Civ.App., Eastland 1944, no writ); Spencer v. Maverick, 146 S.W.2d 819 (Tex.Civ.App., San Antonio 1941, no writ); Shaw v. Morrison, 14 S.W.2d 953 (Tex.Civ.App., Eastland 1929, no writ) ; Miller v. Babb, 263 S.W. 253, 254 (Tex.Comm’n App.1924, opinion adopted); 58 Tex.Jur.2d 411. The agreement was not among the encumbrances and covenants permitted or excepted under the terms of the contract; and there is no evidence that it is a restrictive covenant or condition in connection with the creation of any addition or subdivision of which the property is a part. The seventh and eighth points are overruled.

Investigation disclosed the existence of a lease agreement between- Liberty Steel Company (wholly owned by appellants) and St. Louis Terminal Warehouse Company dated October 30, 1963. This lease contains a provision that it could be terminated by appellants on thirty days’ notice. But on closing day it had not been terminated, nor had appellants given any notice of termination. It was not included among the encumbrances permitted or excepted in the contract. It constituted an encumbrance on the land on the day of closing contrary to the terms of the contract. Lunt Land Corp. v. Stewart Title Guaranty Co., 342 S.W.2d 376 (Tex.Civ.App., Fort Worth 1961, rev’d on other grounds, 162 Tex. 435, 347 S.W.2d 584). Appellants’ ninth point is overruled.

Before the closing date there came to light two outstanding Industry Track Agreements, one dated February 29, 1952, the other September 9, 1947, granting the C. R. I. & P. Railway Company the right to construct, maintain and operate side tracks-on appellants’ property. Appellants argue that since these tracks lay wholly on appellants’ property they could easily be removed at the owner’s request. Be that as it may, the tracks had not been removed nor had the agreement been cancelled on March 9, 1965. They were burdens on the property and were not included among those permitted or excepted under the terms of the contracts Ailing v. Vander Stucken, 194 S.W. 443 (Tex.Civ.App., San Antonio 1917, writ ref’d). The tenth point is overruled.

We agree with the trial court that appellants were unable to convey the property free and clear of any and all encumbrances other than those permitted under the contract. The eleventh point is overruled.

The contract itself provides that the escrow money is to be refunded should the title prove to be defective. Since the title was defective appellee is entitled to recover the deposit. Galbreath v. Reeves, 82 Tex. 357, 18 S.W. 696 (1891) ; Levine v. Turner, 264 S.W.2d 478 (Tex.Civ.App., El Paso 1964, writ dism’d). The twelfth point is overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: TIREY, Justice.

text:
    MONTGOMERY WARD & CO., Inc., Appellant, v. E. E. BREWER et ux., Appellees.
    No. 4621.
    Court of Civil Appeals of Texas. Waco.
    May 25, 1967.
    Rehearing Denied June 15, 1967.

      Baker, Botts, Shepherd & Coates, William C. Bullard, J. E. Clements, Houston, for appellant.
    Wiley Thomas, Angleton, for appellees.
   OPINION

TIREY, Justice.

Mr. Brewer and wife brought this action against Montgomery Ward & Co., Inc., on an alleged cause of action sounding in tort for unreasonable collection efforts. Plaintiffs went to trial on their original petition and, pertinent to this discussion, they alleged:

“It has become necessary to file this suit by reason of the harassment which has resulted in emotional distress, illness and other bodily harm suffered by the Plaintiffs by reason of an alleged indebtedness of Plaintiffs to Defendant in the approximate sum of Twenty-Seven Dollars ($27.00). In truth and in fact, Plaintiffs do not owe the Defendant anything and the Defendant has persisted in unreasonable collection efforts in reckless disregard of the health and welfare of your Plaintiff and his wife and such collection efforts by Defendant to try to collect the balance that is not owing constitutes a course of harassment that, * * * has resulted in emotional distress, illness and other bodily harm to the Plaintiffs. All of the acts of the Defendant were willful, wanton and malicious; all of such acts were the proximate cause of the illnesses that Plaintiffs have suffered, including extreme nervousness, headaches, loss of sleep, reduction in ability to work, extreme fatigue and weariness of both Plaintiffs.” (Emphasis added.)

They alleged that they had been damaged in the sum of $9,999.00.

The Court overruled Defendant’s Motion for Instructed “Verdidt ’and" submitted 4 issues to the jury. They are, substantially, (omitting the burden of proof clause) :

1. Do you find that the telephone calls, letters, form letters, notices and statements made by or on behalf of Montgomery Ward & Co., Inc., to Edwin E. Brewer and wife, from on or about the month of December, 1964, constituted unreasonable collection efforts, as that term is defined for you herein?; to which the jury answered, “We do.”

2. Do you find that such unreasonable collection efforts were a proximate cause of any physical illness or injury to Mr. Edwin E. Brewer?; to which the jury answered, “We do.”

3. Do you find that such unreasonable collection efforts were a proximate cause of any physical illness or injury to Mrs. Edwin E. Brewer?; to which the jury answered, “We do.”

Issue 4 submitted the damage issue; to which the jury answered “$6,000.00.”

The Court, in his instructions to the jury, among other things said: “By the term ‘unreasonable collection efforts’ is meant a course of harassment on the part of a creditor which is willful, wanton and malicious and is intended to inflict mental anguish and resulting bodily harm.” (There was no objection to this instruction.)

The record shows that Mr. Brewer is a graduate of Freeport High School, a graduate of Texas A & M University, a former Captain in the United States Air Force in World War II, a graduate of the University of Texas Law School, a member of the Texas State Bar Association, a member of the Brazoria County Bar Association, a member of the American Bar Association, an attorney that represents the Angleton Bank of Commerce and the Angleton Savings and Loan Association, the City Judge of Danbury, Brazoria County, a -member of-the .Board of Trustees of the Danbury Independent School District; that he and his wife have four children, one at the time of the trial, a student in the University of Texas, and three others at home. There is also a statement in the record to the effect that Mr. and Mrs. Brewer are quite well-to-do in their own right. Needless to say Montgomery Ward is one of the great corporations of our nation engaged in merchandizing, operating in many places in Texas. The record does not disclose how long Mr. and Mrs. Brewer had been customers of Montgomery Ward, but evidently they have been customers for some time, because on October 14, 1964, Mr. Brewer wrote Montgomery Ward the following letter:

“There seems to be a discrepancy in the charge account bill which I received from you this morning. According to my wife she sent in a $27.00 payment month before last and a $30.00 payment last month and according to your statement I do not see a credit for either one. Would you please send me a complete breakdown on purchases and payments for the last six months. Upon receiving this I will submit my check to you.” (emphasis added.)

On December 30, 1964, Mr. Brewer wrote Montgomery Ward & Co.:

“Re: E. E. Brewer Account P. O. Box 569 Angleton, Texas
“Gentlemen:
Yesterday, December 29th, I mailed my check to you in the amount of $108.28. After checking with my wife I find that she had also mailed payments on this account. Therefore I have stopped payment on my check, which is No. 1681, dated December 29, 1964 in the amount of $108.28 and drawn on the Angleton Bank of Commerce, Angleton, Texas. Please send me a statement showing the balance after the payments sent in by my wife, Dorothy N. Brewer have been credited to our account.
With kindest personal regards, I am,
Yours very truly,”

There is nothing in Mr. Brewer’s letters of October and December to indicate that he was out of patience but, on the contrary, indicated a knowledge and awareness of the fact that the Credit Department of Montgomery Ward & Co., was very inefficient and careless in the way they had treated the requests of a valued customer. There is nothing in the record to indicate that Montgomery Ward made any reply to Mr. Brewer’s letters of October and December. The check was tendered in evidence; it is dated December 29, 1964, has on it Angleton Bank of Commerce, Angleton, Texas, payable to Montgomery Ward — $108.28. The check has Edwin E. Brewer, Attorney at Law, printed on it, and is signed Edwin E. Brewer, by Jean Mattisheard. On the left-hand side of the check is printed “Edwin E. Brewer, Attorney-at-Law, Box 569, Angle-ton, Texas.”

On January 19, 1965, Mr. Brewer wrote Montgomery Ward:

“Attention: Central Credit Unit
Re: Edwin E. Brewer Account
“Gentlemen:
“Today I received a second request concerning my check in the amount of $108.28. If you will refer to my letter of December 30, 1964, I informed you that I was ‘stopping payment’ on this check, because of your foul-up in your bookkeeping section. My wife had been paying you in monthly installments on this account and I just became aware of it.
“Your ‘second request’, is the first and only request that I have received from you. If you will check your correspondence, as well as your bookkeeping records you will note that I stated then and I now restate that I have no intention of making good this check, so please return it to me.
“Please, as I requested in my letter to you of December 30th, copy of which is attached, send me a complete itemized statement of all purchases and payments made to date on this account.”

Montgomery Ward made no reply to the above communications. We find nothing in the foregoing letters to indicate that Mr. Brewer’s patience had been exhausted, although, we can understand why it would have been, but at the same time the letters do not disclose such but, on the other hand, show that he was an intelligent person and knew that the bookkeeping department had carelessly made errors in the handling of his account, and he wanted it corrected. As we understand the record as shown by the Exhibits the next communication of Montgomery Ward with Mr. Brewer bears date “Jan”, but the day of the month is not given, neither is the year, but under the record we assume it was 1965.

Plaintiffs’ Exhibit 13, is addressed to Edwin E. Brewer, Box 569, Angleton

“Dear Mr. Brewer:
Amount $108.28
Date Jan
“Your check recently received and applied to your account has been returned from your bank. We have charged this amount back to your account and we ask that you mail your remittance to cover this check at your earliest convenience.
“If this matter cannot be handled within the.next few days we ask that you contact us with your plans to replace the check. Your prompt reply will be appreciated.
Credit Department M14-5191”

We cannot tell from the record whether Mr. Brewer’s letter of January 19, 1965, addressed to Montgomery Ward was written after the notice from the Credit Department to him dated “Jan”, above quoted.

Defendant’s Exhibit 6, shows previous balance $20.00, payments $30.00, purchases $108.28, Feb. 2, 1965 — new balance $58.28, accumulated payments now due $58.28. As we understand the record this notice was sent after February 2, 1965. In Defendant’s Exhibit 7, (printed notice) shows previous balance $58.28, service charge 87‡, March 2, 1965, new balance $59.15, accumulated payments now due $59.15.

Plaintiffs’ Exhibit No. 7 is dated August 10, 1965, it is:

“Mr. Edwin E. Brewer P.O. Box 569 Angleton, Texas “Dear Mr. Brewer:
“I can understand your beeing out of patience with us about not being able to clear your account. I have found the $30.00 payment which you sent us and had not ever received credit. I have written Ft. Worth several times but they have not located the $27.00 you sent them on October 26. Did you make your payment by check and send direct to Ft. Worth? If so, did Montgomery Ward stamp the back of your check and if so what was the date? If you have a receipe what Number is on that? On September 23rd. of last year your account was transferred to us with the balance of $99.74 and we did not receive the $27.00 at this store. Please let me hear as I also want to clear the balance on your account. We have given orders for your statement not to have been sent to you. We are sorry that you have been receiving one.
Thank you,
(signed) M. Gajeske
Montgomery Ward, Credit Department.”
Plaintiffs’ Exhibit 8, shows:
“Regarding your account with Balance due
MONTGOMERY WARD $34.19
“Edwin E. Brewer Box 569
Angleton, Texas Date Sept. 16,1965
“YOUR ACCOUNT
has been placed with us for immediate collection.
Good credit is YOUR MOST PRICELESS POSSESSION. Protect it by paying now.
Have payment in our office immediately.”
Plaintiffs’ Exhibit 21 is:
“MONTGOMERY WARD
“CREDIT VOUCHER Date 9-11-65
“Edwin E. Brewer Box 569 Angleton, Texas
$34.19
“The above amount has been credited to your account for the following reason: tsf. to dht.
* * *
(signed)_DOLLIE (Authorized by)”
Plaintiffs’ Exhibit 18 shows:
"J. Novak Brewer Credit Limit
Box 397 -
Danbury, Texas _
LEDGER SET IIP POR SUSPENSE B«it6 1-30 — 65 By J. H.

As we understand Exhibit 18, it shows that the Brewers were not indebted to Montgomery Ward in any sum whatsoever, and in argument before our court, attorney for Montgomery Ward admitted that at the time the suit was filed that the Brewers were not indebted to Montgomery Ward in any sum. Mrs. Brewer testified in part:

“Q. Now, did you ever receive any more bills at the Danbury address after this one of October 2, 1964 — the next, you will notice, is November, and it is to Angleton, and February, Angleton, and so on down the line, and you can go on through them and check and see.
“A. I am not sure I did, but I should be able to find them.”
“A. Yes. They sent hot letters in the mail practically every month telling me my account was delinquent, when it was not, because I was well ahead with my payments.
“Q. Was that after February, 1965?
“A. They sent hot letters numerous times while I was paying on the account, saying my account was delinquent, and accused my husband of writing a hot check, which is enough to upset anyone when you don’t do that kind of thing.”
“A. Well, the hot letters that I received would be letters saying my account was delinquent, my account was past due.
“Q. Do you have any of those?
“A. No. I threw them in the wastebasket. I knew it wasn’t past due.”
“Q. You say that those letters you got you threw away?
“A. Yes.”
“A. No, I don’t remember when I received the first one; I know that I received some.
“Q. Do you know about how many you received at the Danbury address?
“A. No, I don’t know, but I received about three or four or five.
“Q. Something like that?
“A. Yes. I didn’t keep account of it. I know that every time I got one it upset me very much.”
“Q. Tell the Jury about the notices you received from Montgomery Ward, in addition to the statements you received ?
“A. I received them in the mail, and while I was in the Postoffice I opened the envelope and saw it was a delinquent notice, and I just took it and threw it in the wastebasket, because I knew it wasn’t true; and on one occasion I showed it to the Postmaster there because he knew how ridiculous it was.
“Q. Did you ever write Montgomery Ward on different occasions trying to straighten this out?
“A. Yes.
“Q. On how many occasions that you recall ?
“A. Several.
“Q. What did you tell them in your letters ?
“A. I just wrote a notation when I sent in my payments, and told them —they wanted to know who to credit this money to, so I wrote them a note, and I said, ‘The account will either be under the name of Edwin E. Brewer, E. E. Brewer, or E. E. Red Brewer, or one of those names, and the check I sent in will be signed Mrs. Dorothy Brewer or Dorothy J. Novak Brewer.’
“Q. Now, did you write those letters from home?
“A. Yes.
“Q. Now, has Montgomery Ward & Company ever produced for you or your husband, as far as this lawsuit, or your attorney, these letters you wrote them?
“A. No. They were notes; they really weren’t letters.”
“Q. These so-called hot letters that you told us about, you didn’t keep any of those?
“A. I just threw them in the wastebasket. I wish I had kept them, now.”

Mr. Brewer testified in part:

“A. No, Sir. I had written them on several occasions, and I didn’t consider me calling them would accomplish anything else. If they didn’t answer my letters, I didn’t know I could talk to anyone up there that would give me any answers, either.”
“Q. Those little stickers cause you to have headaches?
“A. Continuously to receive them, yes, sir.”
“Q. But you just got two, did you not?
“A. We just could find two, that is all we have, and you don’t have any ?”

The judgment is assailed on 11 Points. Appellant’s First Proposition is based on Points of Error 1, 2 and 3. It is:

“There was no evidence, or the evidence was insufficient, to prove that Montgomery Ward and Company, Inc., en- ■ gaged in unreasonable collection efforts toward the plaintiffs inasmuch as the plaintiffs in the trial court wholly failed to prove that the defendant engaged in a course of harassment toward them which was ‘willful, wanton and malicious and intended to inflict mental anguish and result in bodily harm.’ ”

We are in accord with this view, and such view will require this cause to be Reversed and Rendered.

It is the appellant’s contention that the mistakes made within the Credit Department of Montgomery Ward in handling the account are different from the efforts to collect the account, and are not actionable and do not constitute a cause of action for unreasonable collection efforts. We are in accord with this view. The question here tendered is whether the communications of Montgomery Ward employees and the Houston Creditors’ Association amounted to a course of harassment which was willful, wanton, malicious and intended to inflict mental anguish and bodily harm. We think the answer to this question is “No.” The communications made by Montgomery Ward to the Brewers are what are to be tested as distinguished from the alleged errors made in the Credit Department in the handling of the account. There is nothing in the record to indicate that the employees in the Credit Department who handled the account of Mr. Brewer knew him; they had no malice or ill will toward him; certainly had no intention of doing him any harm, and their mistakes are free from being willful, wanton and malicious, and were not intended to inflict mental anguish or bodily harm upon him or his wife. Under the record all the acts of the employees in the handling of the Brewer account demonstrated that they were highly inefficient and negligent. In appraising the record here we must keep in mind the Court’s instruction, to which there was no objection, where the Court said:

“By the term ‘unreasonable collection efforts’ is meant a course of harassment on the part of a creditor which is willful, wanton and malicious and is intended to inflict mental anguish and resulting in bodily harm.”

In Black’s Law Dictionary, 4th Ed., we find the following definition:

“WANTON. Reckless, heedless, malicious, characterized by extreme recklessness, foolhardiness, recklessly disregardful of the rights or safeties of others or of consequences * *

In Walker v. Kellar, Tex.Civ.App., 226 S.W. 796-798, we find this statement:

“Malice means a wrongful act, done intentionally, or with evil intent, without cause or excuse, or as the result of ill will.”

In Black’s Law Dictionary, 4th Ed., we find this definition:

“MALICE. The intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances the law will imply an evil intent * *

In Cockrell v. State, 135 Tex.Cr.R. 218, 117 S.W.2d 1105, we find this statement relating to Malice:

“ * * * [A] condition of the mind showing a heart regardless of social duty and fatally bent on mischief”.

We have given much consideration to this entire record, and measured by the yardstick that the Trial Judge instructed the jury to use in arriving at its verdict, we are of the view that the mistakes made in the Credit Department in handling the account was not done in a course of harassment upon the part of the creditor; that they were in no sense willful, wanton and malicious, and that they were in no wise intended to inflict mental anguish or bodily harm upon Mr. Brewer and his wife. These mistakes showed only the highly inefficient manner in which the employees operated in the handling of the Brewers’ account. We are likewise of the view that the communications Montgomery Ward made to the Brewers concerning their account were made as a result of the highly inefficient methods in the Credit Department, and that such communications were in no sense willful, wanton nor malicious, and that they were not intended to inflict mental anguish and bodily harm on either Mr. Brewer or his wife. Under the Court’s instruction it is our view that the plaintiffs have wholly failed to carry their burden and being of this view this cause is reversed and rendered.

In the event we are mistaken in this view we will consider Appellant’s Second Proposition, which is:

“The jury argument delivered by counsel for plaintiffs in the trial court was grossly improper, inflammatory and unduly prejudicial to the defendant and its counsel, and was calculated to cause and probably did cause the jury to render an improper and incorrect verdict.”

We are in complete accord with this view. The Second Proposition is based upon Points of error 4, 5, 6, 7, 8 and 9. At the outset perhaps we should say that there was no objection or exception taken to the argument of appellees’ counsel, nor did appellant’s counsel ask the court to instruct the jury to disregard the argument, and the objections were raised for the first time in its Motion for New Trial. The entire argument of plaintiffs’ and defendant’s attorneys was transcribed, and is shown in the transcript. Appellees’ attorney, in his opening argument, early began his attack upon appellant’s lawyer and his firm. We quote:

“This Plaintiffs’ Exhibit 18 is manufactured evidence, If this were in existence at the time of the depositions in February, why wasn’t it offered? * * * This was made at Montgomery Ward after Baker, Botts, Shepherd & Coates got into this lawsuit. Those are pretty harsh words, aren’t they ? * * * I am now talking about Plaintiffs’ Exhibits 21 and 22, this is manufactured evidence, this was made at Montgomery Ward and Company after Montgomery Ward Company was served with citation to answer this petition that I have filed on behalf of the Brewers. You can have Dolly Rodriguez come into this courtroom and speak in a voice that is hardly audible, but you are not going to explain to twelve men on a Brazoria County jury to their satisfaction that this could be made on September 11, 1965, and the billing procedures at Montgomery Ward kept it there until October 9. That is dishonorable, that is unethical, that is not being fair to the Brewers. * * *
“I wouldn’t stoop to what Montgomery Ward has in this lawsuit if it would kill me. Those' are harsh words * * *.
“ * * * You know why those originals (letters from Mr. Brewer to Montgomery Ward — Plaintiffs’ Exhibits 14, 15 and 16) are not down here? After Baker, Botts, Shepherd & Coates got into the suit, they destroyed the files, they ‘lost’ these letters, all but one. That is when Mr. Brewer wrote the $1,000,000 letter, trying to get their attention. No, Mr. Bullard and Mr. Jay and the widow lady that wants a lot of sympathy— she is not even a part of the suit — they destroyed the files. The stuff you see here is what the Brewers brought in on January 21 to my office. No. Montgomery Ward won’t bring in the files, they destroyed the files after Baker, Botts got in the case.”

At one point in the argument he directed his remarks to Mr. Bullard, trial attorney for Montgomery Ward, and said:

“Why did you tear up the record of Montgomery Ward, are you afraid for the jury to see it ?
“ * * * They knew they were wrong they knew good and well they had this manufactured evidence made up, that when they manufactured their evidence before they filed this first pleading, they knew the Brewers didn’t owe them a dime. * * *
“I have got the screws on them as hard as I could, where they couldn’t tell any more lies, they couldn’t manufacture any more evidence, they couldn’t destroy any more files. * * * ”
Counsel in his closing argument said:
“ * * * I am the man that stood before twelve men seated on the Jury and said that Montgomery Ward intentionally did away with the originals of these letters, all but his $1,000,000 letter * *

We have considered each part of the record very carefully and we find nothing in the evidence nor in Appellant’s trial lawyer’s argument that even tends to support or provoke the statements and severe accusations made by Appellees’ counsel against Montgomery Ward and its counsel. At one point in Appellees’ attorney’s argument he said:

“It is unfair when an attorney representing Montgomery Ward will not let me have this check until the time of trial (there having been no discovery procedure for such check). * * *
“This is an honorable man. This is an honorable woman. They (the plaintiffs) both have got more money than either one of those lawyers over there (attorneys Bullard and Canton). * * *
“ * * * Why did you tear up the record of Montgomery Ward, are you afraid for the jury to see it?
“ * * * with all the money we had to spend to get the depositions, they come in with this amended original answer, ‘Montgomery Ward admits that it made an honest mistake.’ We say that is dishonest right there. * * *
“Here is some more dishonesty on the part of Baker, Botts, ‘The Brewers have sought by this suit to punish Mrs. Gajeske.’ There is one word that a judge told me one time I couldn’t use in this courtroom, and I’m not going to take a chance with Judge Patterson, even though he is from Marlin. But I tell you now that is dishonest. * * * ‘They are seeking to avenge a simple human error which anybody could make.’ Uh-huh. That is not right, that is dishonest, that is not true. * * * ”
Counsel for Appellees further said:
“Yes, your firm has been in Houston over a hundred years. There have been some splendid lawyers in your firm. Tom Phillips is going to be a big man in the State Bar, he is a splendid gentleman and a fine lawyer, and, sir, I doubt if he would be very proud of what has gone on down here.”

Appellees’ attorney charged that Montgomery Ward’s counsel had persuaded witnesses to perjure themselves and withhold evidence and that this conduct was all a part of the conspiracy. He stated it in this manner:

“The only way to describe what I think is another point in this case is as a conspiracy. There was a conspiracy between Baker, Botts, Shepherd & Coates and everybody at Montgomery Ward that they would be hanged before I would find out who at Montgomery Ward turned this account over to the Houston Creditors’ Association, and I can just hear Mr. Bullard now, when he is talking to Mrs. Gajeske, he says, ‘Old Wiley is going to do this, but when you get on the stand, if you talk for five hours, say anything you want to say, but don’t you ever say, don’t tell him what happened to the tray off your desk,’ and she hasn’t to this living day.”

Rule 269(e) of the Texas Rules of Civil Procedure provides:

“(e) Arguments on the facts should be addressed to jury, when one is impaneled and in a case that is being tried, under the supervision of the court. Counsel shall be required to confine the argument strictly to the evidence and to the arguments of opposing counsel. Mere personal criticism by counsel upon each other shall be avoided, and when indulged in shall be promptly corrected as a contempt of court.”

It is obvious that this rule was adopted by the Supreme Court in order to erect walls of permissibility around the sort of free-wheeling jury argument which is useful only to inflame emotion and passion and to displace calm and reasonable analysis. Much has been written on what constitutes reversible error since the adoption of the new rules, and one of the best considered cases was written by Justice Calvert in Texas Employers Insurance Association v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954). There we find this statement:

“What matters it that the argument is of a particular type or falls into a particular catagory? The true test is the degree of prejudice flowing from the argument — whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict" (Emphasis added.)

The question here is whether an instruction of the Court could have removed the prejudicial effects of the argument, or whether the effect of the argument was so inherently prejudicial and inflammatory as to prevent the rendition of a fair and just verdict whether or not the instruction was given. Our Courts have laid down the further rule that the comments of counsel deemed to be prejudicial need not be analyzed in isolation, because in such cases the cumulative effect of all such statements must be considered. That rule was announced in Southern Pacific Company v. Hubbard, 156 Tex. 525, 297 S. W.2d 120-125 (1956). It would serve no useful purpose to discuss the many decisions that have been written by our Supreme Court on improper argument and we shall refer finally to the opinion of our Supreme Court in Howsley & Jacobs v. Kendall, 376 S.W.2d 562 (1964). In that case our Supreme Court in a unanimous opinion, said:

“We need not discuss the matter of improper argument at great length. We are fully cognizant of the fact that a trial before a jury in Texas is an adversary proceeding. Perhaps the lawyer who, in the heat of advocacy, has never made a remark that would call for a reversal of a judgment has not tried many closely contested cases. However, it is not the attitude, purpose, or motive of counsel that is of controlling importance. The important considerations are what was said and how in all probability such statements were understood by the jury.”
At another point in that opinion, we find:
“It is our opinion that from the time the charge was made that someone else was testifying through the lips of Robert Myers, coupled with the statement as to a '‘battery of lawyers,’ the petitioners’ case was irretrievably prejudiced. An assertion of facts having no evidentiary basis were placed before the jury and these asserted facts were in turn made the basis of an inflammatory appeal. No instruction of the trial judge could have removed the prejudicial effects of the argument and hence no objection was necessary to preserve the error.” (See cases there cited.)

The foregoing rule announced by the Supreme Court is peculiarly applicable to the factual situation here as is illustrated by the quotations from the counsel’s argument. There is no evidence that the dis-tmguished counsel for Montgomery Ward & Company had manufactured any testimony in this record, or that they had done anything questionable in the handling of this litigation. Their whole conduct reflected preparation, careful consideration, not only of their client’s interest, but their duty to the court and to counsel, and the litigants on the other side. There is no excuse for counsel having made such an unwarranted and unfair attack against opposing counsel and his firm. So, if we are mistaken in the view that the case should be Reversed and Rendered, then and in that event we think this cause should be Reversed and Remanded. Under the views here expressed, each of appellant’s other points pass out of the case.

Reversed and rendered.


text:
    Mary GRAY, Individually and as next friend of James Lewis Gray, a minor, Appellant, v. Abe BLOCK, Appellee.
    No. 4174.
    Court of Civil Appeals of Texas. Eastland.
    May 26, 1967.

      William Brode Mobley, Jr., Corpus Christi, for appellant.
    Guy Allison and Richard Bradshaw, Corpus Christi, for appellee.
   COLLINGS, Justice.

Mary Gray, individually and as next friend of her minor son, James Lewis Gray, brought suit against Abe Block to recover damages for herself and her son alleged to have been caused by negligence on the part of defendant. Plaintiff alleged that Block was the owner of a residence in which she resided as tenant, that she requested him to construct a rail, banister or protective barrier on the porch of such residence but he failed to do so; that such failure was negligence and a proximate cause of the injuries to her son who was two years old at the time of his accidental fall. The defendant Block answered alleging that the porch and steps to the residence were an open and obvious permanent physical condition, that defendant was guilty of no negligence, had breached no duty to plaintiffs and that plaintiff, individually and as next friend of her minor son, voluntarily exposed herself and her child to whatever risk or hazard existed. Defendant Block, after taking plaintiff’s oral deposition, filed a motion for summary judgment which was granted. Mary Gray has appealed.

The pleadings of the parties, the oral deposition of appellant, Mary Gray, and other matters on file show the following material and uncontroverted facts: in September 1963, appellant and her family moved into a residence in Corpus Christi, Texas, under an oral agreement with Block, the owner of the property, and agreed to pay a rental of $10.50 per week. This oral contract constituted the entire agreement of the parties. Under such agreement appellant resided in the residence until March or April of 1966, when the accident, made the basis of this suit, occurred. At the time appellant moved into the house, and during the entire period of her residence therein there was never a railing of any kind on the porch, which was three or four feet high. There was no covenant by ap-pellee that he would make repairs on the premises. Appellant had, prior to the time of her son’s injury, fallen off the porch herself and broken her arm. She notified ap-pellee of her fall and injury and of the dangerous condition, and requested appellee to remedy such condition by placing a railing on the porch, but he failed to do so. Mrs. Gray did state that when first approached about the matter Block said that he would see about it.

Appellant presents one point contending that there were material issues of fact to be determined and that the court erred in granting appellee’s motion for summary judgment. Appellant asserts that appellee, Block, had a duty to keep the premises in a reasonably safe condition for the use of her minor child, that he knew or should have known the premises were unsafe for a child of such tender years and that appellant’s two year old child, as a matter of law, could not be charged with contributory negligence.

It is well settled that in the absence of a statute or covenant to repair a tenant takes leased premises in the condition in which he finds them and the landlord is not liable for personal injury resulting from patent defects existing on the premises at the time of the letting of the'lease. 52 C.J.S. Landlord and Tenant page 14; Adames v. Housing Authority of City of San Antonio, 392 S.W.2d 806 (CCA 1965 n. r. e.). The Restatement of Torts, Volume 2, Section 367, page 967, states the rule as follows:

“A lessor of land is subj ect to liability for bodily harm caused to his lessee and others upon the land with the consent of the lessee or his sub-lessee by a condition of disrepair existing before or arising after the lessee has taken possession, if
a) the lessor, as such, has agreed by a covenant in the lease or otherwise, to keep the land in repair, and
b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented.”

The trial court did not err in granting summary judgment for appellee Block. He was not in possession of the premises at the time appellant’s son was injured. Appellant was in possession of the property under a lease from appellee and the porch to such residence with no rail or banister thereon was a prominent physical object located on the premises at the time appellant took possession under the lease. Under these circumstances, appellee Block was not liable for the injury to appellant’s son. Flynn v. Pan American Hotel Company, 143 Tex. 219, 183 S.W.2d 446 (Texas Supreme Court 1944); Morton v. Burton-Lingo Company, 136 Tex. 263, 150 S.W.2d 239 (Commission of Appeals, Opinion adopted by the Supreme Court, 1941).

As heretofore indicated, there was no covenant by appellee that he would repair the premises, or to be specific, that he would erect a rail or banister on the porch. If it could be construed that the testimony of Mrs. Gray raises a question of fact as to whether or not appellee promised to provide a railing for the porch, such promise did not constitute a covenant and would thereby create no liability. In Perez v. Raybaud, 76 Tex. 191, 13 S.W. 177, 7 L.R.A. 620, the Supreme Court of Texas, considering the promise of a landlord to repair, stated as follows :

“The promise was merely gratuitous, not made at the time. of the lease, and was no part of the original contract. It was without consideration, and could not be enforced.”

See also Peticolas v. Thomas, 9 Tex.Civ.App. 442, 29 S.W. 166 (Tex.Civ.App. n. w. h.; F. H. Vahlsing, Inc. v. Hartford Fire Insurance Co., 108 S.W.2d 947 (Tex.Civ.App. writ dismissed).

Appellant’s point is overruled. The judgment is affirmed.


author: CLAUDE WILLIAMS, Justice.

text:
    Lu ROBERTS et al., Appellants, v. George L. C. DEHN, Appellee.
    No. 16914.
    Court of Civil Appeals of Texas. Dallas.
    May 12, 1967.
    Rehearing Denied June 2, 1967.
    Gerald W. Moss and Ben Warder, Jr., of Carter, Gallagher, Jones & Magee, Dallas, for appellants.
    Barnett M. Goodstein and Richard Er-langer, of Goodstein, Erlanger & Starr, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Appeal from a summary judgment awarding appellee recovery against appellants for breach of rental agreement. On July 1, 1965 appellants entered into a written lease agreement with appellee’s predecessor in title whereby appellants agreed, for a consideration of $300 per month, to rent an apartment for a period of two years. In addition to the payment of the monthly rental appellants agreed to and did deposit with lessor the sum of $300, the purpose and effect of such deposit being reflected in paragraphs 7 and 8 of the lease agreement, as follows:

“7. In addition to the payment of the first month’s rent on the leased premises, the Tenant deposits herewith the sum of $300.00, receipt of which is hereby acknowledged by Owner. It is agreed that the purpose of the aforesaid deposit is as follows:
“(1) To guarantee the Owner that the Tenant will occupy the premises for the term of this lease and pay the rental therefor in advance as above provided.
“(2) To guarantee the Owner against damage to the leased premises above, in excess of normal use, wear and tear.
“(3) In case of default in the payment of rentals as above provided, the Owner may, at any time, at its sole election, apply all or any part of the above deposit to rentals.
“(4) In case of default or breach of the terms and conditions of this lease, Owner, may, at his option, declare said amount forfeited as liquidated damages.
“8. In case of default in any of the covenants herein, Owner may enforce the performance of this lease in any modes provided by law, and this lease may be forfeited at Owner’s discretion if such default continues for a period of 24 hours after Owner notifies Tenant of such default and his intention to declare the lease forfeited, such notice to be sent by the Owner or its agent by mail or otherwise to the demised premises, and thereupon remove all persons and Tenant’s property therefrom without being deemd guilty of any manner of trespass, and place the same in storage and if not redeemed, the owner is authorized to sell tenant’s property and apply same to any rent due, removál costs, storage costs, or damage to the property. Tenant, in the event of his default of any of these agreements, agrees to pay to owner all costs of enforcing this agreement, including attorneys’ fees, and the Owner, at its discretion, may retían (sic) the deposit described above as liquidated damages.”

Appellee brought this action against appellants, contending that the rent had been paid to and including April 1, 1966 when the appellants had vacated the premises, thereby breaching the lease and resulting in damages to appellee in the sum of $300 per month for the remaining period of the contract. Appellee agreed that appellants were entitled to be credited with the $300 deposit mentioned in the agreement. Appellants first filed a general denial and then amended their answer in which they contended that appellee had made an election of remedies inasmuch as he had chosen to accept a liquidated sum for damages and was therefore not entitled to recover his actual damages.

Appellee filed his motion for summary judgment supported by affidavit in which he set forth the lease agreement and alleged the facts which constituted breach thereof by appellants. He stated that he was applying the $300 deposit to the unpaid rental and asked for his damages computed on the basis of unpaid rental installments. Appellants also filed their motion for summary judgment.

In the hearing on the motions for summary judgment the court considered, inter alia, appellee’s deposition wherein he testified that he had retained the sum of $300 deposited by appellants. His testimony regarding the deposit was:

“Q And have you elected to keep that or have you returned it to the girls.
“A I had no reason to return it to the girls.
“Q So you have elected to keep it, as I understand it?
“A (No response from the witness.)
“Q What I am getting at here, your lease says that you may retain the deposit as liquidated damages, is that what you have done?
“MR. ERLANGER: Read the rest of it.
“MR. MOSS: Well, I will read the whole paragraph if you want me to, or you can read paragraph 8 of the lease.
“Q (By Mr. Moss:) Have you read paragraph 8?
“A Yes.
“Q Now, as I understand it, is says that the tenant, in the event of default in any of the agreements agrees to pay all costs of enforcing the agreement, including the attorney fees, and the owner, at his discretion, may retain the deposit described as liquidated damages, is that what it says?
“A That is right.
“Q Is that what you did?
“A Yes.
“After reading his deposition, Plaintiff added to the last answer in the above excerpt the following:
“I filed suit to enforce the agreement; thus, the $300.00 is being held to cover part of any judgment I might obtain.”

The trial court overruled appellants’ motion for summary judgment and sustained appellee’s motion and thereupon rendered judgment in favor of appellee against appellants in the amount of $900, representing rental payments due for the months of May, June and July 1966, less credit for the $300 deposit retained by appellee, leaving a balance of $600. Appellants appeal from this judgment but do not complain of the action of the trial court in overruling their motion for summary judgment.

Appellants contend, in two points of error, that the trial court erred in rendering summary judgment because an issue of fact was presented by the testimony of appellee recited above on the issue of election of remedies. They argue that the question of whether appellee retained the $300 deposit as liquidated damage and thereby waived any recovery of his actual damages, is one of fact and therefore the trial court should not have sustained appellee’s motion.

By their attack upon the summary judgment rendered against them in this case the burden was cast upon appellants to demonstrate from the record as a whole that genuine issues of material fact existed which required a determination and resolution by a trier of fact. Appellants have pointed to the isolated portion of appellee’s deposition, quoted above, in an effort to meet this burden. When the entire record before the court is examined in the light of the prevailing authorities we are convinced that the matters relied upon by appellants present nothing more than questions of law and not of fact.

The only question presented here is whether the contractual provision relating to liquidated damages is to be construed by the court as an agreement fixing the only damages recoverable for breach of the agreement or whether same is to be regarded as a penalty. The legal distinction between penalties and liquidated damages is that the former constitute security for the performance of the contract while the latter constitute the measure of recovery in the event of nonperformance. Jones v. Mays, 248 S.W. 129 (Tex.Civ.App.); 17 Tex.Jur.2d,. § 157, p. 223. In applying the distinction between penalties and liquidated damages the courts have heretofore been confronted with difficulty in formulating a satisfactory rule.

For many years our courts generally followed the rule that the measure of damages or the amount of recovery in an action for breach of a contract depended largely upon the intent of the parties, as expressed in the instrument itself. In some cases it was held to be proper to consider the language of the instrument in the light of the subject matter and nature of the transaction, the situation of the parties, the object to be attained, the consequences that would naturally arise from a breach of its provisions, and all the circumstances surrounding the transaction. Durst v. Swift, 11 Tex. 273; 17 Tex.Jur.2d, § 159, pp. 226-227. It was said that inasmuch as courts do not look with favor upon contracts for liquidated damages, in order that a provision be considered as providing for such limited recovery, evidence that the parties so intended must appear clearly from the whole contract and the circumstances surrounding-the transaction. Unless such an intent clearly appears the stipulation will generally be regarded as a penalty. 17 Tex.Jur.2d, § 159, p. 226. Moreover, it has been repeatedly held that the courts are not strictly bound by the language of the parties in determining whether a contract stipulation represents liquidated damages or a penalty. Thus, even though a contract expressly declares that the stipulated sum is to be regarded as liquidated damages, it may be held that a penalty was actually contemplated and in such a case the recovery may be limited to the actual damages suffered. Santa Fe St. Ry. Co. v. Schütz, 37 Tex.Civ.App. 14, 83 S.W. 39 (err. ref’d); First Nat’l Bank v. Smith, 160 S.W. 311 (Tex.Civ.App., err. ref’d); 17 Tex.Jur.2d, §§ 160, 161, pp. 227-228.

In an early case decided by this court, Runnells v. Pruitt, 204 S.W. 1017 (Tex.Civ. App. 1918), a rule was stated which has reflected the trend of other courts in solving similar problems:

“Finally, it is contended that the parties by their contract fixed the amount of their damages, and, as a consequence, neither party was entitled to recover a greater sum. The contention presents the oft-recurring question of whether sum stipulated to be paid upon a breach of contract is a penalty or liquidated damages. The general rule is that if the damages resulting from a breach of the contract are certain and determinate, courts will not treat the sum named as liquidated damages, unless it bears such proportions to the actual damages as to raise the presumption it was arrived at by fair estimation of the parties. Collier v. Betterton, 87 Tex. 440, 29 S.W. 467. Where, under the rule stated, the sum named is held to be a penalty, that is, where the damages are certain and determinate, the amount of recovery is not controlled by the sum named but is confined only to whatever sum the proof shows the actual damages are. Palestine Ice, Fuel & Gin Co. v. Walter Con-ally & Co., Tex.Civ.App., 148 S.W. 1109.”

See Schwarz et al. v. Lee, 287 S.W. 519 (Tex.Civ.App.); Kelly v. Cochran County, 50 S.W.2d 848 (Tex.Civ.App.), reversed on other grounds, 125 Tex. 424, 82 S.W. 2d 641; Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484; Christie, Mitchell and Mitchell v. Selz, 313 S.W.2d 352 (Tex.Civ.App.).

Any doubt that previously existed concerning the various elements of, as well as the proper application of, the rule was set at rest by our Supreme Court in Stewart v. Basey, supra. In that case Chief Justice Hickman reviewed and took notice of the antecedent cases on the subject and concluded that in order for a provision for liquidated damages to be enforceable the damages must be (a) uncertain and (b) the stipulation must be reasonable. The court then announced the rule to be:

“The right of competent parties to make their own bargains is not unlimited. The universal rule for measuring damages for the breach of a contract is just compensation for the loss or damage actually sustained. By the operation of that rule a party generally should be awarded neither less nor more than his actual damages. A party has no right to have a court enforce a stipulation which violates the principle underlying that rule. In those cases in which courts enforce stipulations of the parties as a measure of damages for the breach of covenants, the principle of just compensation is not abandoned and another principle substituted therefor. What courts really do in those cases is to permit the parties to estimate in advance the amount of damages, provided they adhere to the principle of just compensation. Restatement of Contracts, Sec. 339, accurately expresses the rule as follows:
“ ‘(1) An agreement, made in advance of breach fixing the damages therefor, is not enforceable as a contract and does not affect the damages recoverable for the breach, unless
“‘(a) the amount so fixed is a reasonable forecast of just compensation for the harm that is caused by the breach, and
‘(b) the harm that is caused by the breach is one that is incapable or very difficult of accurate estimation.’
“This comment on subsection (1) fol-laws: ‘b. Contracts are frequently made in which performance of very different degrees of importance and value are promised and one large sum of money is made payable as damages for any breach whatever. Since such a contract promises the same reparation for the breach of a trivial or comparatively unimportant stipulation as for the breach of the most important one or of the whole contract, it is obvious that the parties have not adhered to the rule of just compensation. In this matter neither the intention of the parties nor their expression of intention is the governing consideration. The payment promised may be a penalty, though described expressly as liquidated damages, and vice versa.’ ”

When we apply these established principles of law to the record before us, which includes the written agreement between the parties, we conclude that the provision of the agreement relating to liquidated damages must be held to be, as a matter of law, a penalty and therefore appellee was not precluded by such provision from recovering his actual damages. It is to be observed from a reading of the lease agreement that the establishment of the actual damages is certain and not indefinite or incapable of being clearly established. The calculation of the monthly rental is a matter of mathematics. Moreover, the amount of the alleged, liquidated damages, $300 could not bear a proportionate relationship to the potential actual damages which might flow from a breach of the contract at any particular time thereof.

We are not impressed with appellants’ argument that the quoted portion of appel-lee’s deposition conclusively demonstrates an issue of fact. When analyzed carefully, and in the light of the record as a whole and the authorities above discussed, the answer of appellee may be said to be (1) indefinite in terms of reference, and (2) nothing more than an expression of a conclusion of law. In any event, we view the testimony as lacking inprobative force to create an issue of fact.

We therefore believe, and so hold, that the trial court was correct in finding as a matter of law that appellee, by the withholding of the $300 deposit, did not thereby foreclose his legal right to recover his well-defined damages. The amount of the deposit, by whatever name it may be called, has been credited to the amount of damages recovered, for which appellants may certainly have no valid complaint.

Finding no issue of fact demonstrated in this record the judgment of the trial court is affirmed.

Affirmed.


author: CHAPMAN, Justice.

text:
    HEMPHILL COUNTY, Appellant, v. Walter ADAMS et al., Appellees.
    No. 7613.
    Court of Civil Appeals of Texas. Amarillo.
    May 22, 1967.
    Kehearing Denied June 19, 1967.

      J. D. Crow, Canadian, for appellant.
    Allen, Allen & Reavis and Jack M. Allen, Perryton, Lane & Douglass, and Don R. Lane, Pampa, for appellees.
   CHAPMAN, Justice.

The Supreme Court of Texas in a Per Curiam opinion properly reversed this court wherein we affirmed the trial court. The latter court overruled the motion for summary judgment of appellant, Hemphill County, and appellee, Lawyers Surety Corporation. Then after a day and a half of testimony before a jury, dismissed the jury and held the case of plaintiff, Hemphill County, was barred under the two-year statute of limitation.

The action filed by the county attorney of Hemphill County was for conversion of personal property but “Title 91-Limitations * * * 1. Limitations of Actions for Lands,” Volume 16. Vernon’s Ann.Tex. Civ.St., Article 5517 (whether intentional or not) provides: “The right of the State, all counties, incorporated cities and all school districts shall not be barred by any of the provisions of this Title, * * As we now are aware, Article 5526 in Volume 16A is also part of Title 91. Both the trial court and our court overlooked Article 5517 indexed under “Limitations, Actions for Lands.” We assume appellant’s counsel likewise did so, for no briefs called such statute to our attention. Since Article 5526 having to do with suits for conversion of personal property also comes under Title 91, Limitations, and this is a suit for conversion, it follows that no limitation runs against Hemphill County.

The Court of Civil Appeals of Eastland in Hemphill County v. Adams, 390 S.W.2d 546 (1965) in passing upon a summary judgment granted by the court for defendants, Harry Rathjen and Walter Adams, held there are clearly fact issues to be decided in the case. We agree, since limitation does not apply.

The trial of the case was subsequently started before a jury and before the testimony was completed dismissed by the trial judge upon two theories; i. e., (1) limitation, and (2) that the judge of said court was “convinced that the county attorney of Hemphill County filed this case on his own motion and without the consent or authority of the commissioners’ court of Hemphill County, Texas, and that for each of said reasons said cause should be dismissed.” Since the order of dismissal assumes the county attorney is without authority to file a suit in the absence of consent or authority of the Commissioners’ Court of the county, we are squarely presented with the question as to whether as a matter of law he was without such authority on his own without the consent of the Commissioners’ Court. We meet the question headon.

Article 5, Section 1 of the Constitution of Texas, Vernon’s Ann.St., as amended 1891, established Commissioners’ Courts. Article 5, Section 18 thereof provides, with respect to the duties of said court, as follows:

“Each county shall in like manner be divided into four commissioners precincts in each of which there shall be elected by the qualified voters thereof one County Commissioner, who shall hold his office for four years and until his successor shall be elected and qualified. The County Commissioners so chosen, with the County Judge as presiding officer, shall compose the County Commissioners Court, which shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed.”

The Supreme Court of Texas in 1883 in Looscan v. County of Harris, 58 Tex. 511, held:

“The commissioners’ court, presided over by the county judge, is virtually a council vested with power to manage and direct all such material and financial interests of the county as the laws of the state have confided to its jurisdiction. The management of the financial affairs of the county have always heretofore been vested in tribunals which have existed at different times under various names and designations, such as county court, commissioners’ court, etc.; they have, however, all been clothed with similar powers, and like duties have been imposed upon them. The commissioners’ court undoubtedly has the right to cause suits to be instituted in the name of and for the benefit of the county, and except where a concurrent right to do the same thing, or ■where an exclusive right in a specified case or cases is conferred upon some other tribunal or some other officer of the government, the commissioners’ court must be deemed to be the quasi executive head of the county, vested with exclusive power to determine when a suit shall be instituted in the name of and for the benefit of the county.” (Emphasis added.)

The Court then spelled out in detail the evils that in many instances would occur to a county if any official other than the Commissioners’ Court had the authority to make decisions concerning the filing of law suits; i. e., judgments conclusive against the county to its financial embarrassment and against which the official guardians of the county’s interest in financial matters would be rendered impotent to protect.

The only statute with which we are familiar that would give the county attorney the authority to make the decision for the county as to whether it would seek to recover the proceeds from two jeeps sold by Harry Rathjen after title had been transferred to him when he was no longer a county official or a member of the Civil Defense Council is Article 339, V.T.C.S. That statute provides that if a county attorney has knowledge “ * * * that any officer in his * * * county entrusted with the collection or safe keeping of any public funds is in any manner whatsoever abusing the trust confided in him, or in any way failing to discharge his duties under the law, he shall institute such proceedings as are necessary to compel the performance of such duties by such officer and to preserve and protect the public interests.”

On February 9, 1959, Hemphill County established a Civil Defense unit and ap-pellee Harry Rathjen, then its sheriff, was appointed Director. Acquisition of various types of property was made by Mr. Rathjen from Texas Surplus Property Agency of Lubbock. The director paid his own funds to the Lubbock agency out of his individual bank account for the handling charges incident to such acquisition. Hemphill County Commissioners requisitioned through Rath-jen certain items for various precincts and the director was reimbursed by the county. Among the many items acquired by the Civil Defense unit through its director, Rathjen, were two jeeps. The machines were not operational and he expended approximately $1,105.52 to place them in working order, paying for such repairs out of his personal bank account.

The stated reasons for the acquisition of the jeeps were for disasters such as tornadoes and prairie fires. However, ranchers of the county during the interim purchased a four-wheel drive heavy-duty pickup. The county-owned two-way radio was installed therein rather than in one of the jeeps as Rathjen had intended. The jeeps then became of no value so far as the original intended purpose relating to their acquisition, were never used for such purposes, and were rarely used for any purpose during the time Rathjen was sheriff and director of the Civil Defense unit of the county. The testimony shows that at or about the time he was appointed postmaster he offered the jeeps to the county for the amount he had expended on them and the county speaking through its County Judge, was not interested. As above stated he later sold them, receiving less money for them than he had personally expended in order to make them operational. Suit was filed by the county attorney on behalf of Hemphill County for the $1,050.00 the jeeps were sold for, alleging conversion of that amount by Rathjen and Walter Adams, his successor as sheriff. Adams had transferred titles out of the county, one transfer being made to Ray Dudley Motor Co., Hemphill County, Texas, by Walter Adams, Sheriff. The other was made to Harry Rathjen, “Hemphill County, Texas, by Walter Adams, Sheriff.” It is shown in the record that Rathjen received the money for the jeeps, but as heretofore stated, it was less than he had expended out of his personal account in making them operational.

Since the case was dismissed by the trial court before the testimony was completed it is not possible for us to tell from the present record if the case is of the type by which the county attorney would have the authority to obligate the county in filing it without the authority of the Commissioners’' Court. There is an order passed by that Court to the effect that “[it] was not concerned with and in no sense approved the acquisition by Harry Rathjen, former Civil Defense Director of Hemphill County, Texas, of any donable surplus property except such items as were ordered and received by Hemphill County, and upon which Hemphill County paid the handling charges. The Commissioners’ Court never knew about the sale of Jeep Vehicles until after such event, and did not approve said sale, and does not now approve said sale, and does not believe it to be the Court’s concern." (Emphasis added.)

The County Judge of Hemphill County testified that to his knowledge the county never put any money into the jeeps and that if he had considered Harry Rathjen had converted them from Hemphill County they would have filed some sort of action and pursued the matter.

The pleadings show no order by the Commissioners’ Court to have the county attorney of the county file the suit. It is not a quo warranto proceeding. The record as it stands, uncompleted, does not show Rathjen was entrusted with the safe keeping of public funds in his capacity as director of the Civil Defense, nor that he was neglecting or abusing any public trust confided in him, nor failing to discharge his duties under the law. In fact, he was neither a sheriff nor any other county officer at the time of the sale of the jeeps. The facts, undeveloped as they are, do not in our opinion bring the case within Article 339 above mentioned. Bexar County v. Davis, 223 S.W. 558 (Tex.Civ.App.-San Antonio, 1920, writ ref’d); Edmondson v. Cumings, 203 S.W. 428 (Tex.Civ.App.-Galveston 1918, no writ) ; Harwell v. Ward County, 314 S.W.2d 868 (Tex.Civ.App.-El Paso, 1958 writ ref’d n. r. e.).

We have studied Terrell v. Greene, 88 Tex. 539, 31 S.W. 631 (1895) very carefully and do not believe the instant case, as presently developed, brings it within the rules of that case. As stated in Bexar County v. Davis, supra: “Undoubtedly, if the funds were misapplied by the collector or the treasurer, the district or county attorney was authorized, and it was made the duty of one or both, to sue the officer making such misapplication. That is all that is held in so far as applicable to this case, in the case of Terrell v. Greene, 88 Tex. 539, 31 S.W. 631 * * *.”

There is not any way for us to know what the record would reveal if fully developed. As it stands now it would be a gross injustice for a County Commissioners’ Court to ask a county officer to serve in an extra capacity above and beyond his elected duty, permit him to spend out of his own personal account more than eleven hundred dollars making operational two jeeps it did not order, need nor use, decline to take them for the charges against them, paid by the Civil Defense Director out of his personal account, pass an official order to the effect that the Court “does not believe it to be the Court’s concern” and then take $1,050.00 from the former officer representing the proceeds from the jeeps that had cost the county nothing.

Only the county judge testifed. The testimony of the commissioners may show a different state of facts. Under the present state of the record, we hold it does not show Article 339 is applicable, but we do not by such holding preclude ourselves from a different holding if a full development of the case shows Mr. Rathjen as director of Civil Defense was entrusted with the collection or safe keeping of public funds; that he neglected or abused the trust confided in him in that respect or in any way failed to discharge his duties under the law in connection therewith. As we view the record, it will take a development of the complete facts before the trial court could pass upon the question of the legal right of the county attorney to file the suit without the authority of the Commissioners’ Court. The facts upon the merits would be so closely related we perceive no reason why the trial on the merits could not be held along with the question of the authority of the county attorney to file the suit.

The case is reversed and remanded with instructions that it be placed back upon the docket.

      I. Hemphill County v. Adams, 408 S.W.2d 926 (Tex.1966).


author: FANNING, Justice.

text:
    McRoy BROWN, Appellant, v. Josie Rose LATCH et vir., Appellees.
    No. 7816.
    Court of Civil Appeals of Texas. Texarkana.
    May 30, 1967.
    Rehearing Denied June 27, 1967.

      C. L. Ray, Jr., Ray & Kirkpatrick, Marshall, Harry Taylor, Mt. Pleasant, for appellant.
    Larry W. Starr, Kenley, Boyland & Hawthorn, Longview, for appellees.
   FANNING, Justice.

A venue case. Appellant, McRoy Brown, a resident of Titus County, Texas, sued appellees, Josie Rose Latch and husband Joe Latch, in the District Court of Harrison County, Texas. Appellees filed a plea of privilege seeking transfer of the cause to the county of their residence, Upshur County, Texas.

Appellant’s controverting plea sought to maintain venue in Harrison County, Texas, the place of the car-truck collision in question, under Subd. 9a of art. 1995, Vernon’s Ann.Tex.R.Civ.Stat.

The only witness who testified was plaintiff-appellant McRoy Brown. He was cross-examined by appellees’ attorney. His testimony, in our opinion, as hereinafter outlined, made a prima facie case authorizing the maintenance of venue in Harrison County, Texas, under Subd. 9a, supra. Appellees offered no testimony controverting any of appellant’s testimony.

After plaintiff-appellant testified on direct and on cross-examination, (and after argument of counsel), the trial court sustained the plea of privilege. Appellant has appealed.

Since there were no findings of fact or conclusions of law, the burden of appellant on his appeal is to negative every hypothesis which might have served as a premise for the court’s judgment, including the theoretical finding by the trial court that appellant had not established his cause of action by a preponderance of the evidence in satisfaction of the requirements of Subd. 9a of art. 1995. In this connection see Brown v. Nelms, Tex.Civ.App., 374 S. W.2d 917, no writ (1964).

In 60 Tex. Jur.2d, Venue, § 247, p. 169, it is stated in part as follows:

“ — Where plea sustained. * * * A presumption will not be indulged to support a judgment sustaining the defendant’s plea of priviledge where the defendant offered no evidence on the plea contrary to the evidence introduced by the plaintiff. In such a case inferences most favorable to the plaintiff, which his evidence would reasonably bear, must be indulged.”

In this connection also see Farley v. Nix, Tex.Civ.App., 199 S.W.2d 670, no writ (1947).

In Watson v. Roche, Tex.Civ.App., 224 S.W.2d 297, no writ (1949) the rule is stated that generally testimony of an interested party only creates an issue of fact, but where the opposite party is in a position to contradict or discredit such testimony and fails to do so, the interested party’s testimony (where it is clear and positive) will be taken as true. And in"'Fowl'd?' V. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 237 S.W.2d 373, writ refused (1951), it was also held that generally the testimony of a party to a suit does no more than raise a fact issue, though uncontradicted, but such a witness’ clear, direct and positive testimony, not contradicted by any other witness or attendant circumstances, is taken as true as a matter of law.

In 17 Tex.Jur. pp. 306-8 it is stated in part as follows:

“Usually the force of evidence, though slight, is greatly increased by the failure of the opposite party to rebut it, where it is obvious that the means are readily accessible to him. The failure of a party to take advantage of an opportunity to explain inculpatory circumstances is evidence against him, and his failure to produce evidence in his possession which might have rebutted a presumption against him strengthens such presumption. Where a party does not in any way seek to contradict the testimony of his adversary on a particular point, the presumption is that he has no testimony to controvert it; and when the proof tends to establish a fact, and at the same time discloses that it is within the power and the interest of the opposite party to disprove it, the silence of the opposing party not only strengthens the probative force of the affirmative proof but of itself is clothed with a certain probative force. * * *
“Generally the failure of a party to an action to testify raises a strong presump-
tion against him, and his failure or refusal when testifying to disclose a fact exclusively within his knowledge, or to explain the transaction involved, though afforded the opportunity to do so, and the fact that he suppresses evidence or fails to disclose or state all of the facts within his knowledge, or that, when testifying, he fails to deny testimony of his adversary, raises a presumption or may be considered as a circumstance against him. * * * ”

‘ As above stated the only testimony in the record is the testimony given by plaintiff-appellant. In his pleadings appellant alleged, among other matters, that an automobile accident occurred in Harrison County, Texas, in which the appellee, Josie Rose Latch, stopped or slowed the automobile she was operating in the traveled portion of a highway without warning or signal and that the front of appellant’s pickup truck collided with the rear of appellee’s automobile. He alleged that such action constituted negligence on the part of appellee Josie Rose Latch, which was a proximate cause of damages to appellant, in his receiving personal injuries, as well as his truck being damaged thereby.

The only testimony at the hearing was that of appellant who testified to the effect that the appellee stopped or slowed suddenly, while directly in front of appellant’s vehicle in the traveled portion of the highway, and that he saw no signal from the appellee’s vehicle. In this connection we quote in part from appellant’s testimony as follows:

“Q. In other words, you didn’t have time, I mean you were looking away, you couldn’t have seen any signal if she had given one, could you?
A. Well, if she had applied her red brake, I believe I would have, don’t you?
“The appellant also testified * * *:
“Q. Well, did she slam on her brakes ?
A. You ain’t woofing! She sure did * * *”

The appellant also testified that the collision occurred in Harrison County, Texas, and testified concerning bodily injuries sustained by him by reason thereof as well as medical and hospital bills and property damages caused thereby.

Appellant’s evidence clearly made out a prima facie case of negligence and proximate cause, occurring in Harrison County, Texas, and showed that as a result of the collision he received personal injuries, incurred medical and hospital bills and also sustained property damages. This evidence was clear and positive and was not controverted.

The evidence reflects that there were two occupants in the Cadillac automobile that stopped suddenly in front of appellant. There was evidence to the effect that the driver of the Cadillac automobile in question was Josie Rose Latch. In this connection we quote from the record in part as follows:

“Q. What kind of car was it that was in front of you ?
A. Cadillac.
Q. And, have you learned since that time who was driving the automobile?
A. Well, this lady that you mentioned, she called the shop, her mother called the shop, I have a shop over at Jefferson, and the lady — the mother of the girl or the lady that was driving called me over there and told me who she was.
Q. And would that be Josie Latch? Would that have been the driver of the car?
A. I believe that’s right. * * *” (Emphasis added)

No objection of any character was made by appellees to any portion of the above testimony, nor was such testimony probed by appellees on cross-examination, nor did appellees examine appellant an voir dire to determine what portion, if any, of said testimony might be based on hearsay and what portion was not based on hearsay. Under said testimony appellant testified to the effect that he “later learned” that Josie Latch was the driver of the driver of the car. Such testimony was not necessarily hearsay. See Strickland Transportation Company v. Ingram, infra. In Norris v. Lancaster, 280 S.W. 574 (Tex.Com.App. 1926), the court held that to exclude testimony on the ground of hearsay, the testimony must affirmatively appear that it is wholly hearsay. Also in Missouri Pac. Ry. Co. v. Sherwood, 84 Tex. 125, 19 S.W. 455, 17 L.R.A. 643 (1892), it was stated in part as follows:

“ * * * We are unable to say that the knowledge of the witness, to the existence of which he swears, was founded on pure hearsay. * * * The cross-examiner did not sufficiently probe the sources of the witness’ knowledge to justify us in holding that it was founded entirely on hearsay, rendering his testimony inadmissible.”

It is our view that under the record in this cause such testimony of appellant is not affirmatively shown to be wholly hearsay, and in the absence of any contradiction by Josie Rose Latch, who was in a position to easily dispute this testimony if it was not true, such testimony at least established a prima facie case of Josie Rose Latch being the driver of the Cadillac automobile in question. In this connection see Strickland Transportation Company v. Ingram, Tex.Civ.App., 403 S.W.2d 192, wr.dism. (1966), and other authorities reviewed with said case in Baylor Law Review, Vol. XVIII, No. 4, Fall 1966, pp. 639-643. Also it would be in the interests of justice to reverse and remand the case for fuller development with respect to the above question as well as for fuller development of the case as a whole.

The evidence did not raise an issue of unavoidable accident nor of sole proximate cause and the judgment of the trial court can not be sustained upon either of these theories. We also do not perceive any other theory upon which the trial court’s judgment can be sustained.

While appellees in their cross-examination of appellant may have raised issues of contributory negligence on the part of appellant, such matters would not justify the trial court’s judgment, as contributory negligence issues are immaterial on a venue hearing. See Heldt v. McCreary, Tex.Civ. App., 399 S.W.2d 181, no writ (1966) and authorities cited therein.

It is our view that since plaintiff-appellant’s testimony, which was the only evidence in the record, was uncontradicted by appellees who were in a position to attempt to contradict the same if they saw fit to do so, and since there is nothing in the record to discredit it, that plaintiff made out a prima facie case by the preponderance of the evidence, establishing venue in Harrison County, Texas, under Subd. 9a of art. 1995.

It is our view however that the case was not fully developed and that in the interest of justice the cause should be reversed and remanded for fuller development. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948). Accordingly, the cause is reversed and remanded to the trial court.

Reversed and remanded.