author: SHARPE, Justice. NYE, Justice.

text:
    T. M. SHEARER, Sr., Appellant, v. J. C. MITCHELL, Appellee.
    No. 260.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 31, 1967.

      Polk Hornaday, Harlingen, for appellant.
    Arthur A. Klein, Harlingen, for appellee.
   OPINION

SHARPE, Justice.

This appeal is from a summary judgment rendered in favor of appellee Mitchell, plaintiff below, against appellant Shearer, defendant below.

Appellant by two points asserts in substance that the trial court erred in rendering summary judgment (1) without first passing upon his dilatory pleas, and (2) because material issues of fact were presented. Appellee by two counterpoints asserts that the summary judgment was proper because: (1) appellant failed to file a sworn affidavit controverting plaintiff’s motion for summary judgment, and (2) there were no questions or issues of fact which would preclude summary judgment. These points and counterpoints present the usual summary judgment questions as to whether the movant, appellee here, has established “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 166-A, Texas Rules of Civil Procedure.

We have concluded that the summary judgment should not have been granted for the reasons hereinafter stated.

The transcript in this case, which includes the summary judgment evidence, reflects the following:

On February 21, 1966, appellee filed his original petition in which he sought recovery against appellant on a promissory note payable to First Victoria National Bank, Victoria, Texas, a copy of which was attached to the petition. The note was signed by (1) Frank’s Credit Clothiers, Inc., by T. M. Shearer, President, (2) by T. M. Shearer, individually (appellant here), and (3) by J. C. Mitchell, individually (appellee here). Aside from the commencement, allegations concerning attorney’s fees and the prayer, Mitchell’s petition reads as follows:

“I
“That on or about January 14, 1964, FRANK’S CREDIT CLOTHIERS, INC., a corporation of which T. M. SHEARER, SR. was President, executed to the First Victoria National Bank, Victoria, Texas, a certain promissory note in the principal sum of Eleven Thousand Six Hundred Eighty-Six and ll/100th Dollars ($11,686.11) payable in installments of One Hundred Dollars ($100.00) each, weekly, including interest, beginning January 28, 1964. Said T. M. SHEARER, SR. individually signed said note and J. C. MITCHELL endorsed said note.
“II
“That on February 3, 1966, J. C. MITCHELL was forced to pay Nine Thousand Seven Hundred Ninety Eight and 13/100ths Dollars ($9,798.13) unpaid balance, including interest, on said note, and said note was assigned to J. C. MITCHELL without recourse on the First Victoria National Bank, Victoria, Texas, and that said J. C. MITCHELL is now the owner and holder of said note and prays ten percent (10%) interest on all delinquent payments, a thermofax copy of said note being attached hereto, marked Exhibit ‘A’ and made a part of this Petition.”

On March 22, 1966, Shearer filed an original answer, consisting of a general denial.

On April 14, 1966, Mitchell filed motion for summary judgment, which was solely based upon the ground that Shearer’s original answer was insufficient as a matter of law and failed to assert any defense to Mitchell’s cause of action. The motion reasserted that Mitchell was an “endorser” of the note.

On April 19, 1966, Shearer filed an amended answer which contained various pleas, including a number of dilatory pleas as well as pleas in bar. The dilatory pleas included pleas in abatement, of mis-joinder and nonjoinder of parties, and special exceptions. The pleas in bar included general denial and a sworn denial of various matters, including Paragraph V., reading as follows:

“Further, but subject in all things to the foregoing Pleas and exceptions and still relying thereon this defendant shows that the subject matter of Plaintiff’s Suit and especially the so-called Note in Plaintiff’s Exhibit ‘A’ is involved in long and complicated series of transactions, contracts and agreements between Plaintiff and this Defendant. Defendant shows that he, the defendant, has paid more than $4400.00 toward the liquidation of the so called Note and that the balance due thereon in a somewhat excess of $5000.00 plaintiff was obligated to pay and should have paid. However the said plaintiff was not forced to pay the balance due on said note, but voluntarily paid the same, in the manuever used to make plausible a claim against this defendant. This defendant denies that he is liable for any amount on the said alleged Note, Plaintiff alleges Plaintiff was forced to pay.”

On April 28, 1966 (the day before the hearing on the motion for summary judgment) Mitchell filed his affidavit, a copy of which was received by counsel for Shearer on the same day. Omitting formal portions, the said affidavit reads as follows:

“My name is J. C. MITCHELL. I am Plaintiff in the above entitled and numbered cause. I am over the age of twenty-one years, and have never been convicted of a felony and am competent to testify to the matters stated herein.
“On or about January 14, 1964, I endorsed a note for $11,686.11 payable to the order of FIRST VICTORIA NATIONAL BANK, VICTORIA, TEXAS, for FRANK’S CREDIT CLOTHIERS, INC., and T. M. SHEARER, SR. This note bears interest at 6Yi% from date and at 10% interest after maturity and provides for 10% attorney’s fees.
“T. M. SHEARER, SR., received the money or consideration for the loan of $11,686.11. This note was paid down to $9,798.13 as of February 1, 1966, and on February 3, 1966, as endorser, I had to pay the note off and received an assignment from the FIRST VICTORIA NATIONAL BANK, VICTORIA, TEXAS, of the note and I am now the owner and holder of said note.
“The original note and credits are attached hereto and made a part of this affidavit.
“I am asking judgment against T. M. SHEARER, SR. for $9,798.13 as FRANK’S CREDIT CLOTHIERS, INC. has made an assignment for the benefit of creditors and is insolvent.
“Said note provides for 10% attorney’s fees, which I feel is reasonable and is customary and provides for 10% interest after maturity.”

On April 28, 1966, Shearer filed a separate reply to Mitchell’s motion for summary judgment which contained an affidavit made on the basis of personal knowledge. A part of such reply to the motion for summary judgment was Shearer’s amended answer, which was fully set out therein, and was referred to and included in the affidavit of Shearer. Shearer’s reply, and all of the matters contained therein, thus became a counter-affidavit in opposition to the granting of a summary judgment for Mitchell.

On April 29, 1966, the trial court rendered summary judgment for Mitchell as prayed for by him; the written judgment being signed for entry on May 2, 1966.

Our examination of the transcript herein has disclosed that it probably does not completely show all of the note attached to the affidavit of J. C. Mitchell filed in the trial court on April 28, 1966, hence we ordered that the original note and its attachments be sent to us for inspection under Rule 379, T.R.C.P. The same is now before us as a part of the record and the following appears therefrom. The note is printed on the front side of an envelope. The back side contains a list of credits, apparently of interest. Attached to the back of the envelope by scotch tape is a separate sheet apparently containing a list of further credits of interest. Also on the back of the envelope are some typewritten notations showing that the note is a new one (apparently a renewal of various items) as follows:

“Principal . $ 8001.72
Interest. 494.39
Deposit. 3190.00
Total new note $11,686.11”

On the front of the note, on the right hand side, there are columns with entries apparently showing credits to principal, which are continued on two small separate sheets attached by scotch tape on top of the right hand side of the note. The top one of these sheets shows an assignment from the bank (without recourse) to Mitchell. On the inside of the envelope there are three separate small sheets each headed “extension agreement.” These are dated 10-27-64, January 29, 1965 and July 15, 1965. Each of these three extension agreements is signed by J. C. Mitchell and by the Vice-President and Cashier of the bank. The other joint makers of the note (Frank’s Credit Clothiers and Shearer) did not sign such extension agreements. The credits on the note show $2,466.36 paid on the principal and $957.70 on interest, aggregating $3424.06. Shearer swore in his amended answer and counter affidavit that he had paid more than $4400.00 in liquidation of the note.

In the case of Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 46 (Tex.Sup., 1965) the court summarized the basic summary judgment rules as follows:

“This is a summary judgment case; and in answering the above question, we must follow certain rules laid down by this Court. Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat’l Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S. W.2d 929 (1952). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup.1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957); Smith v. Bolin, supra; Gul-benkian v. Penn, supra. Evidence which favors the movant’s position is not considered unless it is uncontradicted. If such uncontradicted evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1943). This exception is especially true where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so. Valley Stockyards Co. v. Kinsel, supra; James T. Taylor & Son, Inc. v. Arlington Ind. School Dist., 160 Tex. 617, 335 S.W.2d 371 (1960); Owen Dev. Co. v. Calvert, 157 Tex. 212, 302 S.W.2d 640 at 642 (1957); McGuire v. City of Dallas, 141 Tex. 170, 170 S.W. 2d 722 (1943) ; Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, [114 S.W.2d 226,] 136 S.W.2d 207 (1940). After all the evidence has been sifted in this manner, the Court must determine whether the movant is entitled to a judgment as a matter of law.”

In Reed v. Buck, 370 S.W.2d 867 (Tex.Sup., 1963) a promissory note payable to Stelfox was signed by Shine and Buck in the capacity of makers. Stelfox assigned the note to Reed who, upon non-payment of same sued Buck alone. The trial court rendered judgment for Reed holding among other things that Reed was an accommodation maker and could sue Buck without joining Shine. On Buck’s appeal, the Court of Civil Appeals reversed the judgment and remanded the cause for another trial. The Supreme Court reversed the judgment of the Court of Civil Appeals and remanded the case to that court for consideration of points not passed upon by it involving contentions relating to factual insufficiency of trial court findings. The Supreme Court held among other things “that when a party signs a note in the capacity of a maker, the payee (or one standing in the shoes of a payee) may sue such maker singly and proceed to judgment upon the note without joining in the suit another or others who may also appear upon the note as co-makers.” The court emphasized that “[t]he question was one of parties.” At page 871 of the opinion the Court said:

“From a procedural standpoint, the rule is highly practical which permits a note creditor to sue a debtor in the contractual capacity which the debtor assumed at the time the obligation was made. Substantial fact issues may develop in cases similar to this, where one signing as a maker claims to be a surety. Examples of these questions may be given: Is the holder of the note a holder in due course ? Is the person who signed as a maker actually a guarantor or surety? It is not an efficient procedure which requires a determination of fact issues in order to decide a problem of parties. In some instances, the settlement of such issues cannot be avoided, but in the circumstances now under consideration, it may be avoided — arid without serious detriment to the accommodation maker. * * * ” (italics supplied).

Reed v. Buck, supra, did not involve a plaintiff who was one of the original comakers of the note seeking recovery against another co-maker, as in the case here. There the plaintiff was connected with the transaction only as the assignee of the original payee and he sought recovery only against one co-maker. Here, Mitchell seeks a recovery which is dependent upon his legal relationship with Shearer, as between themselves, and not upon their liability to a third person payee. The settlement of the issues between Mitchell and Shearer, therefore, cannot be avoided. They are directly presented.

In 9 Tex.Jur.2d, Bills and Notes, § 294, pages 324, 325, the following statement appears:

“Since agreements between joint makers in no way affect the right of a payee or holder to recover, in the absence of notice thereof,18 evidence is ordinarily inadmissible in a suit by a payee to prove agreements between the makers that did not affect the rights of the payee.19 But as between themselves,20 or as against a payee with notice,1 or his estate,2 one or several of the joint makers may show the real character of their undertaking.”

The cases cited in footnotes 20, 1 and 2 are Erwin v. DuPont (E. I.) De Nemours Powder Co., 156 S.W. 1097 (Tex.Civ.App. Dallas, 1913, n. w. h.) ; Lockett v. Farmers’ State Bank, 205 S.W. 526 (Tex.Civ.App., Amarillo, 1918, n. w. h.); Guaranty State Bank of New Braunfels v. Kuehler, 114 S.W.2d 622 (Tex.Civ.App., Austin, 1938, wr. ref.); and First Nat. Bank of Fort Worth v. Brown, 172 S.W.2d 151 (Tex.Civ.App., Ft. Worth, 1943, wr. ref., w. o. m.).

In the case of Lockett v. Farmers’ State Bank, 205 S.W.-526, 527 (Tex.Civ.App., Amarillo, 1918, n. w. h.), the Court held:

“* * * The note sued on appeared on its face to be the joint and several obligation of all the parties. The liability of the parties, in the absence of proof to the contrary, would be presumed to be as it appeared from the face of the note, and no express agreement on the part of any of the parties, as to equal liability with the others, was necessary in order for such to be the legal relation of the signers, one to the other. * * * ”

In Lockett, the Court also reiterated the rule that in the situation above set out where the face of the note showed the parties to be joint and several makers, a party claiming to be a surety had the burden of proof as to such contention.

In the case of Durham v. McDowell, 265 S.W. 425, 426, (Tex.Civ.App., El Paso, 1924, n. w. h.) the Court said:

“The relation of principal and surety is always a matter of agreement between the parties, expressed in terms or implied by their conduct or the circumstances. The relation never arises by mere operation of law, but is the result of an express agreement between the parties, or a contract which may be fairly implied from the situation in which the parties have intentionally placed themselves. 1 Brandt on Suretyship (3d Ed.) § 1.”

The only allegations in Mitchell’s petition and the only statements in his affidavit, bearing upon his relationship with Shearer are as follows: In his petition, Mitchell alleges he “endorsed said note.” In his affidavit, Mitchell states that “I endorsed a note” for the other two makers, and “ * * * as endorser, I had to pay the note off.” Mitchell does not allege in his petition that he was a surety, an accommodation maker or a guarantor. Nor does he state any facts in his affidavit which would furnish the basis for any of such relationships with Shearer. On the oral argument of the case in this Court, counsel for appellee contended that Mitchell was a surety.

In the recent case of Crain v. Davis, 417 S.W.2d 53 (Tex.Sup.1967), our Supreme Court reversed a summary judgment and remanded the cause for trial. The Court held in part as follows:

“We turn now to the sufficiency of Respondents’ motion for summary judgment and the supporting affidavits attached to such motion. It is self-evident that the affidavits which were filed in support of the motion for summary judgment do not meet the requirements of Rule 166-A, Texas Rules of Civil Procedure, that the affidavits shall set forth such facts as would be admissible in evidence. The statements contained in the affidavits are but mere conclusions of the affiants and, therefore, would not be admissible. The facts stated in an affidavit given in support of a motion for summary judgment must be so worded that if the testimony were given from the witness stand during the trial it would be admissible. Statements contained in affidavits offered to support a motion for summary judgment that are but mere conclusions are insufficient to warrant the entry of such a judgment. ‘In ruling on a motion for summary judgment only admissible testimony having probative force is to be considered.’ See Box v. Bates, Sup.Ct. (1961), 162 Tex. 184, 346 S.W.2d 317, McDonald, Texas Civil Practices § 17.26.2; Bates v. Smith, 155 Tex. 443, 289 S.W.2d 215 (1956).”

We believe the rules stated in Crain v. Davis to be applicable here.

When we examine the note (the original of which was attached to Mitchell’s affidavit) Mitchell is shown on the face thereof to be a joint maker. Under the terms of the note he is liable as a principal, jointly and severally with the other makers. Mitchell’s statement in his affidavit that he was an “endorser” conflicts with the note concerning the capacity in which he signed the same. When we apply summary judgment rules as above stated, we must view the evidence in the light most favorable to the party opposing the motion and resolve the conflict as to the existence of genuine issues of material fact in favor of Shearer.

Mitchell’s affidavit does not state facts showing the actual arrangement or agreement, if any, which existed between him and Shearer as to their respective liabilities for payment of the note. It does not set out facts which would establish that as between them Shearer owed the entire amount of the note instead of being liable for only part of it. Absent such facts, we are presented with genuine issues of material fact concerning the equal liability of Mitchell along with the other makers for payment of the note. Mitchell particularly failed to establish facts which would show that he was a surety, as was contended here on oral argument.

Furthermore, Mitchell was an interested witness. The statement in his affidavit that he was an “endorser” is a conclusion unsupported by facts. It is not the kind of clear, direct and positive evidence which is required to conclusively establish material facts under summary judgment rules, particularly when considered along with the note relied upon by him, which discredits such statement.

Summarizing, the fact that Mitchell became the owner and holder of the note (because of indorsement without recourse of the original payee) does not, standing alone, establish his right to recover from Shearer the full amount owing on it, where the note on its face shows that Mitchell and Shearer signed the note individually, were joint makers, and jointly and severally liable as principals to the original payee. Mitchell was required to establish by proper summary judgment evidence the facts which would support his asserted right to recover against Shearer under applicable law and he failed to do so. Summary judgment should have been denied on this ground, and, in any event on the ground that Shearer’s counter affidavit was sufficient to demonstrate existence of material fact issues as between him and Mitchell, and that Mitchell was not entitled to recover as a matter of law.

By Shearer’s separate sworn reply to Mitchell’s motion for summary judgment, his special exceptions and the other pleas contained therein became a part of his defense to the requested action. One of these defenses related to Mitchell’s allegation that he was an “endorser”. Shearer pointed out that the face of the note showed Mitchell to be an original signer, individually; and stated that if Mitchell would be entitled to recover, the same would be on a pro-rata basis, or for contribution. In addition to these matters, Shearer stated that he had paid more than $4400.00 on the note and that Mitchell was obligated to pay and should have paid in excess of $5000.00 on the liquidation of it. Shearer also stated that Mitchell was not forced to pay the balance of the note but did so voluntarily, and that “plaintiff should be required to allege facts and circumstances so that the court or jury might determine whether or not plaintiff was forced to' pay.”

Mitchell’s position here is largely based upon Shearer’s alleged failure to file a sworn affidavit which would show the existence of fact issues. This position is not well taken. To the extent that Shearer’s said reply to the motion for summary judgment contains proper statements showing the existence of material fact issues or that Mitchell was not entitled to judgment as a matter of law, we can consider the same as part of the summary judgment record. In this connection we note that in the trial court Mitchell did not file objections or exceptions to Shearer’s reply to the motion for summary judgment or his counter affidavit which included his amended answer. See Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 234 (Tex.Sup.1962); Hall v. Fowler, 389 S.W.2d 730, 733 (Tex.Civ.App., Dallas, 1965, n. w. h.). In the last cited case the court said:

“As we pointed out in Lotspeich v. Chance Vought Aircraft, Tex.Civ.App., 369 S.W.2d 705, 710-711, wr. ref. n. r. e., objections to the form of affidavits supporting or opposing motions for summary judgment should be raised in the trial court and an opportunity given for the correction of the defects, and failure to do so, as authorized by Rule 90, T.R.C.P., constitutes a waiver of the objections. See also Employers Mutual Casualty Co. v. Lee, Tex.Civ.App., 352 S.W.2d 155, 157, no wr. hist.”

In the case of In Re Price’s Estate, 375 S.W.2d 900, 904 (Tex.Sup.1964), our Supreme Court held as follows:

“The summary judgment rule, 166-A, has been somewhat strictly construed against the movant. It has been held that the courts should accord the party resisting the summary judgment more indulgence. Whelan v. State, Tex.Civ. App., (1952) 252 S.W.2d 271. The purpose of the rule is to eliminate patently unmeritorious claims, or untenable defenses and to avoid delays of trial where there is no genuine issue of fact. It was never intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact. The summary judgment is to be applied with caution and will not be granted where there is doubt as to the facts. Athough the prompt disposal of judicial business is greatly to be desired, that is not the main objective. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.”

In Whelan v. State, 252 S.W.2d 271, 273 (Tex.Civ.App., Texarkana, 1952, n. w. h.) cited with approval by the Supreme Court in the case of In Re Price’s Estate, supra, the Court said:

“In ascertaining from the record if a genuine issue of a material fact is presented the provisions of Rule 166-A ‘should be temperately and cautiously applied’. Kaufman v. Blackman, Tex.Civ.App., 239 S.W.2d 422, 428. And as stated in 22 Texas Law Review, p. 438, ‘It is historical that in administering summary judgment practice, the courts have been inclined to be critical of the showing made by the moving party. Customarily he is held strictly to a conclusive showing that no fact issue exists and that he is entitled to judgment without further delay. Conversely, the courts accord the resisting party considerably more indulgence; the motion will be denied if it appears that a substantial fact issue may exist, regardless of in-formalities or defects in the resisting party’s papers.’ See also King v. Rubinsky, Tex.Civ.App., 241 S.W.2d 220, and decisions there discussed. The application of this rule to the record here leads to the conclusion that defendants were entitled to a hearing on the merits of their claim asserted.”

The form of Shearer’s reply to the motion for summary judgment may be unusual, but when the same is considered in the whole context of the case, and particularly along with the deficiencies of Mitchell’s affidavit in support of the summary judgment, Shearer’s reply should be held sufficient to prevent summary judgment. We do not believe that Shearer’s contentions concerning the non-joinder or mis-joinder of parties would alone be a defense to the motion for summary judgment, if it had been properly supported by evidence. However, many of Shearer’s sworn statements in his other pleas and exceptions constitute proper defensive matter to the granting of summary judgment and should have been considered by the trial court along with Mitchell’s affidavit.

In the recent case of Halpenny v. Maldonado, 415 S.W.2d 16 (Tex.Civ.App., San Antonio, 1967, n. w. h.), Maldonado sued Halpenny, his co-maker on a promissory note, to recover payments made by Maldonado to Groos National Bank, the payee of said note. The jury found that Maldonado paid $600.00 on the note and he was awarded a recovery of that amount plus attorney’s fees of $60.00. We quote from the opinion in part, as follows:

“Appellant did not testify at the trial and the facts are largely uncontradicted. On September 6, 1963, appellee manufactured jewelry and operated a retail jewelry store. On this date he sold a matched engagement and wedding ring to appellant for $600.00. This purchase was financed through the Groos Bank in accordance with appellee’s practice where a customer desired to finance a purchase of over $200.00. A promissory note, payable $29.32 monthly, was executed in the amount of $703.68, which included the principal sum, together with credit life insurance and interest. This note was co-signed by appellant and ap-pellee, and the sum of $600.00 was then transferred by the Bank to appellee’s account. After a few payments on the note were made by appellant, he and his wife separated, and he refused to make further payments for the stated reason that his wife kept the rings. Appellee made the remaining payments on the note, totaling $600.00. After the payments were completed, the Bank assigned the note to appellee without recourse and he filed this suit.
“It is significant that this is a suit between the co-makers without the intervention of the rights of an innocent third party or holder in due course of the note, and there is no question of limitations. In this situation the appellee had the right to show that as between the original parties, it was intended that he be secondarily liable. The record fully supports an implied finding that appellee was only secondarily liable and that there was no intention to cancel the note. The purpose of the note was to secure financing in order that appellant could purchase rings from appellee. Unless the note was paid by appellant, appellee would receive nothing for this purchase. * * * ”

The Court of Civil Appeals affirmed the judgment of the trial court on the ground that it was supported by an implied finding that the parties to the note intended that Maldonado be secondarily liable thereon, and that the note was not discharged by Maldonado’s payment of same to the payee. The court reiterated the rule under the negotiable Instruments Act (now repealed, but in effect at the time of the transaction in Halpenny, as well as in the instant case), as follows:

“ * * * that payment by the principal debtor or by the party accommodated discharges the instrument, but payment by a party secondarily liable does not discharge or extinguish the debt. * * *” (citing cases).

It thus appears that although Maldonado had received the money from the payee of the note, nevertheless, he was only secondarily liable and was entitled to recover from Halpenny, his co-maker on the note, because of the facts pleaded and proved by Maldonado under the applicable rules of law. However, in the cited case, the underlying facts which establish the relationship between Halpenny and Maldonado were proved so as to show that Maldonado was not simply a co-maker but that he was actually, as between him and Halpenny, only secondarily liable.

In our case, the allegations or statements by Mitchell that he was an endorser, that Shearer “received the money or consideration for the loan of $11,686.11” and that Mitchell “had to pay the note off” in the absence of factual explanation and without any showing that Mitchell had not benefited or had not received any consideration, were not sufficient to establish that Mitchell was an indorser, surety, accommodation maker or guarantor. On the oral argument of this case counsel for Mitchell stated in substance that the note in question was a part of a transaction whereby Shearer or his corporation purchased a clothing store from Mitchell for $11,686.11; that the money for such purchase was borrowed from the bank, and that Mitchell put up some collateral as security. Aside from a reference in the note as to collateral, there is nothing in the summary judgment record before us to show the overall nature of the business transaction involved. Although it may be possible for Mitchell to show that he is only secondarily liable on the note and to recover from Shearer on a factual showing similar in nature to that in Halpenny v. Maldonado, such a showing has not been made on the summary judgment record now before us.

It appearing from the foregoing discussion that appellee Mitchell, the movant for summary judgment, has failed to carry his burden of establishing that there is no genuine issue as to any material fact and that he was entitled to judgment as a matter of law, the judgment will be reversed and the cause remanded.

Reversed and remanded.

DISSENTING OPINION

NYE, Justice.

I respectfully dissent.

This is a suit on a promissory note brought by the owner and holder of the note against one of the makers. Although the defendant had every opportunity to properly oppose the granting of the summary judgment and inject by affidavit any defense he might have, he failed to show the existence of a dispute as to a fact on a controlling issue.

J. C. Mitchell sued T. M. Shearer, Sr. to recover the unpaid balance on a note for past due interest and attorney fees, alleging that $9798.13 was the unpaid balance due.

The trial court granted plaintiff’s motion for summary judgment. Plaintiff alleged that on or about January 13, 1964 a corporation by the name of Frank’s Credit Clothiers, Inc., of which T. M. Shearer, Sr. was President, executed a promissory note in the amount of $11,686.11 to the First Victoria National Bank, Victoria, Texas, payable in weekly installments of $100.00 per week including interest, payments to begin January 28, 1964. Plaintiff alleged in his petition and again as a part of his sworn motion for summary judgment that defendant T. M. Shearer, Sr. individually signed the note and that plaintiff J. C. Mitchell endorsed said note. Plaintiff further alleged that on February 23, 1966 he was forced to pay $9798.13, the unpaid balance of said note including interest; that the note was assigned to him, J. C. Mitchell without recourse on the First Victoria National Bank of Victoria, Texas and that he, J. C. Mitchell was the owner and holder of said note. The defendant filed a general denial. Subsequently, plaintiff Mitchell filed his affidavit which set forth the essential proofs which would entitle him to summary judgment. They are (1) that he was the owner and holder of the note, (2) that certain payments had been made with certain credits properly allowed, (3) that a sworn copy of the original note was attached and made a part of the affidavit and (4) that the sum of $9798.13 was due and owing. See Southwestern Fire & Casualty Co. v. LaRue, 367 S.W.2d 162 (Tex.Sup.1963), dissenting opinion by Chief Justice Calvert at page 168 (case not decided on this point). Defendant filed a general denial followed by a verified answer to the summary judgment and not a reply affidavit. This would not satisfy the requirement as to affidavits on summary judgments. Rule 166-A T.R. C.P. In addition to the foregoing, the defendant as a part of the same answer filed numerous exceptions to plaintiff’s original pleadings, none of which were sworn to. On page five of this pleading, defendant did file an affidavit stating that he had read the foregoing “paragraph number V” and that said paragraph is “true and correct.” This was sworn to before a notary-public. Paragraph V is as follows:

“Further, but subject in all things to the foregoing Pleas and exceptions and still relying thereon this defendant shows that the subject matter of Plaintiff’s Suit and especially the so-called Note in Plaintiff’s Exhibit ‘A’ is involved in long and complicated series of transactions, contracts and agreements between Plaintiff and this Defendant. Defendant shows that he, the defendant, has paid more than $4400.00 toward the liquidation of the so called Note and that the balance due thereon in a somewhat excess of $5000.-00 plaintiff was obligated to pay and should have paid. However the said plaintiff was not forced to pay the balance due on said note, but voluntarily paid the same, in the manuever used to make plausible a claim against this defendant. This defendant denies that he is liable for any amount on the said alleged Note, Plaintiff alleges Plaintiff was forced to pay.”

The above statement is couched in legal conclusions, vague and unclear language, evidencing an attempt apparently, to show some past condition or agreement relating to the payment of a delivered instrument. The language would tend to vary by parol the terms of the written instrument. Such statements would not be admissible in evidence upon a trial of the case. Shepherd v. Erickson, 416 S.W.2d 450 (Tex.Civ.App.—Houston 1967) and cases cited therein.

Appellant’s first point is that the court erred in rendering summary judgment on the pleadings without having passed upon defendant’s appellant’s plea in abatement, misjoinder and non-joinder of parties and without ruling upon defendant’s appellant’s special exceptions to plaintiff’s original petition. This point is multifarious and should be overruled. Rule 4, Tex.R.Civ.P.; see Appellate Procedure in Texas, Section 12.4(4) and the collection of cases cited therein; Johnson-Sampson Const. Co. v. W & W Waterproofing Co., 274 S.W.2d 926 (Tex.Civ.App.—Amarillo 1953, n. r. e.). In passing, however, none of defendant’s exceptions were defenses that would have any merit unless sworn to in accordance with the requirements of Rule 93 Tex.R. Civ.P. Similarly, Rules 94 and 95 Tex.R. Civ.P. provide that other affirmative defenses must be affirmatively plead. On the other hand plaintiff’s proof in the form of an affidavit with a sworn copy of the note attached was sufficient to make out his case. Defendant’s defensive facts, if any, must be sworn to in order to defeat the motion for summary judgment. See Southwestern Fire & Casualty Co. v. LaRue, supra, at page 163. It has been repeatedly held by our courts that where the moving party’s adversary filed no counter affidavit, and made no showing other than that stated in his pleadings nor made any showing to the effect that affidavits on his behalf were unavailable, such adversary has in effect admitted the sworn facts as alleged by movant’s affidavits to be true. See this Court’s opinion in Usher v. Glass, Sorenson & McDavid Insurance Co., 409 S.W. 2d 880 (Tex.Civ.App.—Corpus Christi 1966, n. r. e.) ; Hill v. Caparino, 370 S.W. 2d 760 (Tex.Civ.App.—Houston 1963, n. w. h.); Gray v. Storey, 383 S.W.2d 487 (Tex.Civ.App.—Fort Worth 1964, n. w. h.); Futch v. Greer, 353 S.W.2d 896 (Tex.Civ. App.—Amarillo 1962, ref. n. r. e., certiorari denied 372 U.S. 913, 83 S.Ct. 728, 9 L.Ed.2d 721, 1962).

Appellant contends in his second point that the trial court erred in rendering summary judgment when there were issues of fact raised by the pleadings. The defendant’s pleadings do not have the same effect of raising a fact issue when tested along side the plaintiff’s sworn motion, his affidavit and the promissory note which was introduced into evidence. Plaintiff Mitchell alleged that Frank’s Credit Clothiers was insolvent; that he executed the note as an indorser; that he had the note in his hands and introduced the same into evidence, all of which was sufficient to make out a prima facie case. See Negotiable Instruments Act, Art. 5932, Tex.Rev. Civ.Stat.Ann., Sec. 17, para. 6; Art. 5936, Tex.Rev.Civ.Stat.Ann., Sec. 60. Defendant’s one paragraph which was sworn to by reference, is all that could have been considered by the trial court as a defense to the note. In my opinion it does not meet the requirements of subdivision (e) of Rule 166-A, Tex.Rev.Civ.Stat.Ann. It does not raise an issue of material fact with sufficient particularity so that treating such statement as sworn testimony it still does not contradict any material fact shown by the plaintiff’s motion, affidavit and note.

The defendant did not deny the execution of the note but concedes this fact in his brief. He does not plead any of the affirmative defenses including payment, fraud, etc. under Rule 94.

If it can be said that defendant is contesting plaintiff’s legal capacity to sue or that the plaintiff is not entitled to recover in the capacity in which he sues, plaintiff’s pleadings do not meet the test of Rule 93 which requires that the same be sworn to by the defendant. It is observant that the appellant has not plead any specific payment in any form. Under Rule 95, payment is an affirmative defense which requires that the defendant file his account stating directly the nature of such payment, and the several items thereof; “ * * failing to do so, he shall not be allowed to prove the same, unless it be so plainly and particularly described in the plea as to give the plaintiff full notice of the character thereof.” Defendant’s one paragraph sworn statement most of which consisted of conclusions, does not raise any fact issue so as to preclude the granting of summary judgment for appellee. Smith v. Crockett Production Credit Association, 372 S.W.2d 956 (Tex.Civ.App.—Houston 1963, n. r. e.). See also Hall v. Fowler, 389 S.W. 2d 730 (Tex.Civ.App.—Dallas 1965) and Fisher v. Howard, 389 S.W.2d 482 (Tex.Civ.App.—Dallas 1965) ; Southwestern Fire & Casualty Co. v. LaRue, supra.

Legal conclusions in affidavits opposing a motion for summary judgment are insufficient to create a fact issue where they are vague and indefinite and especially where there is evidence of material facts in the affidavits and other evidence introduced by the movant. Schull v. Lower Neches Valley Authority, 416 S.W.2d 505 (Tex.Civ.App.—Beaumont 1967). See Crain v. Davis, 417 S.W.2d 53 (Tex.Sup.1967) on sufficiency of affidavits when tested for admissibility.

I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: DAVIS, Justice.

license: Public Domain

text:
    Chester G. GOODNIGHT, Appellant, v. Dr. John R. PHILLIPS, Appellee.
    No. 7798.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 5, 1967.

      John H. Holloway, Houston, for appellant.
    W. N. Arnold, Jr., Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
    Quinnan Hodges, Butler, Binion, Rice, Cook & Knapp, Houston, for intervenor.
   DAVIS, Justice.

The opinion handed down in this case on June 27, 1967, is withdrawn and the following submitted in lieu thereof.

NATURE OF THE CASE

A medical malpractice case. Plaintiff-appellant, Chester G. Goodnight, sued defendant-appellee, Dr. John R. Phillips, for damages alleged as the result of a hernia operation. Judgment was entered for appellee. Appellant has perfected his appeal and brings forward 24 points of error.

There are 6 volumes of the statement of facts and exhibits of the original trial and one volume of statement of facts on the motion for new trial. Counsel for appellant took two pages to state the nature of the case. The statement, as above set out, is all that is necessary. Appellant brought forward 24 points of error, many of which are multifarious and contain about 7½ pages of the brief. This seems to be contrary to Rule 418, Texas Rules of Civil Procedure. Justice Alexander of the Waco Court of Civil Appeals, later Chief Justice of the Supreme Court, wrote an opinion in Lang et al. v. Harwood, Tex.Civ.App. (1941), 145 S.W.2d 945, as to what should form the contents of a brief and the various parts thereof. By the points of error, appellant required the reading of the entire statement of facts and all the exhibits. In re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Appellant alleged that on June 6, 1960, he sustained a left inguinal hernia while working for a 7-11 Grocery Store. (It was shown that he had previously received a right hernia in 1944 that was repaired by Dr. Talley in Temple, Texas, without any resulting damage whatever).

After receiving the last hernia, appellant went to see Dr. Dave Kamanesky, his family physician, who diagnosed the case as a hernia and advised an operation. Appellant reported this to his employer. The employer sent appellant to see the appellee. The appellee likewise diagnosed the condition as a hernia. Appellant asked the appellee to certify the fact that he had a hernia so that he could get Dr. Kamanesky to do the operation. This, appellee would not do.

According to the evidence, appellee told appellant that Dr. Kamanesky was not specialized, or a specialist in the field of hernia operations. He told appellant that he would rather do the operation because he was more qualified to do the job. He further told appellant that he had done thousands of hernia operations. Appellee stressed the fact that he was a specialist and showed appellant many diplomas on the walls of his office, and stated that he had even operated on doctors. According to the testimony of appellant, appellee guaranteed the operation, that he would be back on his feet in 3 days after the operation, and, would be back to work in 3 or 4 weeks.

The evidence is conflicting about the agreement and the type of operation that was to be performed. Appellee testified that he had probably done 200 or maybe 300 hernia operations prior to this one. Appellant did not testify as to the type of operation that was to be performed. That there are three types of hernia operations: Ferguson, Bassini and the Halsted. The Halsted was the type used. The Halsted repair to the herniated area is done by silk thread, or by fascia lata, that is taken from the hip. The fascia lata type was performed.

Appellant alleged that as a result of the operation, the doctor closed the inguinal ring too tight; that it cut off the blood supply that goes into the cord that goes to the left testicle. The injury occurred on June 6, 1960. The operation was not performed until June 20, 1960. According to the evidence, on June 21, 1960, appellant’s left testicle was immensely swollen and was causing severe pain the morning after the surgery. He called this fact to the attention of appellee, who, apparently, disregarded it. He kept calling the fact to the attention of the doctor, but there was not anything done to relieve the swelling as long as he was in the hospital. He testified that while he was in the hospital, he was kept under sedation, but his left side, his left testicle, and his left leg continued to bother him. Prior to the operation there was nothing wrong with the left testicle and he could enjoy the usual sexual affairs.

After the operation and the swelling had subsided in his left testicle, atrophy began. During the operation appellee had to lift up the cord that goes to his left testicle, and it seems that the fascia lata was sewed underneath. This had a tendency to shorten the cord. Appellant did not notice anything being wrong with the cord or the left testicle prior to the operation. Something had a tendency to shorten the cord, and, as a result thereof, the left testicle apparently was imbedded up in the groin at the time of the trial. During the swelling of the left testicle, they furnished appellant with a jockey-strap to hold the left testicle up to keep the strain off of it. He said Dr. Phillips told him that “it was just under normal procedure; it will eventually go away”.

After the surgery, appellee would not give appellant a release so he could go back to work for the company where he was injured. It seems that appellee demanded a release from appellant for any and all liability for both himself and the company before he would certify him as able to go back to work.

Apparently, appellee could realize the seriousness of the situation that existed. He secured the services of a Dr. Stackhouse to examine Goodnight. Dr. Stackhouse came to the office of appellee on August 24, 1960, and proceeded to examine him. Appellee had already advised the removal of the left testicle. Dr. Stackhouse advised its removal.

There was evidence that was admitted during the trial that the company insurance had paid for the operation. This was done by appellee on questioning by appellant’s counsel. Appellant offered evidence to show that they had tried to get the hospital records. It was during the trial of the case that appellee and his attorney admitted that they had the records. Appellee offered the hospital records in evidence which showed that it was a Workman’s Compensation Case.

After the jury had answered some of the special issues, attorney for appellant filed a motion to disregard certain of the jury findings and to declare a mistrial. It was overruled. Appellant filed a motion for new trial, and amended motion. The amended motion for new trial was overruled. Special Issue No. 3 that was submitted to the jury was not answered. The third Special Issue inquired if the jury found from a preponderance of the evidence that a failure to provide a sufficient opening through the inguinal ring so as to allow a normal supply of blood to plaintiff’s left testicle was a proximate cause of the damages. The jury had answer to Special Issue No. 1 that the inguinal ring had been closed too tight to permit a normal supply of blood to appellant’s left testicle. The trial court answered Special Issue No. 3 on what he contended was “a matter of law”. The issue, as submitted, presented a “fact question”. The trial court was not allowed to answer the same. The answer of the trial court to this issue appears in- the judgment as follows:

“And it appearing to the Court, after having considered the special issues submitted by the Court to the jury and the answers to the jury to such special issues, that the unanswered Special Issue No. 3 of the Court’s charge should, as a matter of law, be answered ‘We do’, and the Court, upon its own motion, finds that as a matter of law the failure to provide sufficient opening through the inguinal ring so as to permit normal supply of blood to plaintiff’s left testicle was a proximate cause of the damage to plaintiff’s left testicle, and it is, therefore ORDERED, ADJUDGED AND DECREED by the Court that as a matter of law that Special Issue No. 3 shall be answered ‘We do’, and that plaintiff’s motion to disregard the jury’s findings and for a mistrial shall be in all things overruled and denied to which action and rulings and orders of the court plaintiff in open court duly excepted and objected.”

Special Issue No. 3 could have been answered, “We do”; or, “We do not”. The loss of the blood supply to the left testicle could have been caused by the swelling of the cord prior to the operation; or, it could have been caused by closing the inguinal ring too tight, or, by post operative swelling.

There should not have been any reference made to insurance by either side. 56 Tex.Jur.2d 441, Sec. 99, and authorities cited thereunder; 56 Tex.Jur.2d 445, Sec. 101, and authorities cited thereunder; and, 56 Tex.Jur.2d 616, Sec. 273, and authorities cited thereunder. To consider the question of insurance during the jury deliberation constituted jury misconduct and constitutes ground for a new trial, or a reversal of any judgment that has been entered. 57 Tex. Jur.2d 19, Sec. 385, and authorities cited thereunder.

This case must stand or fall on the question of whether or not the jury was guilty of misconduct, as a matter of law, that probably caused damage to the appellant and that the trial court abused his discretion to overrule the motion for a new trial. By his point No. 4, appellant complains of the jury misconduct. Although the point is multifarious, we can tell from reading the brief why he is making such complaint. Appellant says the trial court erred and abused his discretion because of the jury misconduct which was shown, as a matter of law, which prevented him from having a fair and impartial trial, and resulted in an improper verdict. That such jury misconduct, as a matter of law, was calculated to ■ be harmful to him, and, in all reasonable probability, was prejudicial. He gives the following reasons:

(1) The jury received new evidence of a material and prejudicial nature relating to payment of workmen’s compensation benefits which caused juror Calhoun to change his vote on the negligence issue because he was informed by other jurors that appellant was trying to collect twice for the same injury.
(2) The jury was improperly informed by other jurors that for an agreement to be binding under Special Issue No. 4 must be in writing and signed by the appellee, causing three jurors to change their vote based upon such erroneous statement of the law.
(3) The jury received new evidence, considered their personal experience relating to their experiences with other doctors under the agreement issue; and,
(4) The lady juror was so prejudiced against appellant that he could not secure a fair and impartial trial.

The jury began its deliberations about 11:35 A. M. on February 24, 1966. They were unable to answer any Special Issues that afternoon. They reported that they were hopelessly deadlocked and could not reach a verdict. They requested of the trial court the meaning of the words “cut and sever” and also the meaning of the word “agreement”. They requested a dictionary so they could look up the meaning of certain words. The trial court refused the request and referred the jury to his charge. The trial court sent the jurors home and instructed them to return the next day and begin their deliberations again.

The jury returned on February 25, 1966, and began deliberations at 9:00 A. M. They proceeded to answer some of the special issues. According to the record, the jury verdict was returned at 12:20 P. M. that day. The attorney for appellant secured an affidavit from a juror, Thomas J. Calhoun, Jr., where he swore to the facts that the jury was unable to reach an answer on any of the special issues during the first day of deliberation, and on the second day they were still unable to reach an answer on issues 1, 2 and 3 and had to skip to issue No. 4. He swore that he and 3 others had been voting “we do” in answer to this special issue, but all the other jurors took the position that an agreement to be legal had to be in writing and signed by the doctor. He swore in the affidavit and on the hearing on the motion for new trial that because., of. this reason he changed his vote. Freddy E. Zlomke, Jr., swore to the same fact and also swore that he would have voted to give the man $100,-000.00 for his damages. Wilburn Hanisch swore to the fact that he had been voting “we do” in answer to Special Issue No. 4, but was convinced by the jurors’ argument that the agreement had to be in writing and signed by Dr. Phillips to be legally binding, and, therefore, he changed his vote. All these jurors swore to these facts, which were clearly outside of the court’s charge, two of them swearing that they would give $25,000.00, and $35,000.00 for his damages.

It was shown in the hearing on the motion for new trial that there was much discussion about the workmen’s compensation insurance during the jury deliberation. During the hearing on the amended motion for new trial, the attorney for Dr. Phillips asked Freddy E. Zlomke, Jr. the following question: “O, well, didn’t he (the attorney for Goodnight) read to you at the time that the man had gotten $5,689.00 in insurance ?” The question was objected to and the objection was sustained. There was much testimony about what went on during the jury’s deliberation about how much money was paid to Goodnight by the workmen’s compensation insurance company; and, in overruling the motion for new trial, the trial court had this to say:

“ORDER OVERRULING PLAINTIFF’S AMENDED MOTION FOR NEW TRIAL
“BE IT REMEMBERED that on this the 6th day of June, 1966, came on for hearing the plaintiff’s amended motion for new trial in the above entitled and numbered cause, and came the parties through their attorneys and announced ready for hearing thereon, and the Court proceeded to consider the motion for new trial, together with hearing of evidence pertaining to the allegations of jury misconduct, and the Court having duly considered such evidence, motion, and argument of counsel thereon, is of the opinion that the Motion- should be in all things overruled. However, the Court finds as a fact, from the evidence offered on jury misconduct, that the jury did discuss workmen’s compensation insurance and did consider the fact that the medical expense had been paid by workmen’s compensation carrier for plaintiffs employer, as testified to by the jurors, but the Court concludes as a matter of law that such discussion was not reasonably calculated to be prejudicial to the plaintiff so as to prevent him from having a fair and impartial trial. The Court further finds that the jury misconduct, if any, relating to statements of the jurors as to what the Court meant by the word ‘agreement’ in Special Issue No. 4, was insufficient for the Court to find that such misconduct did in fact occur, or that if it did occur that it was reasonably calculated to be prejudicial to the plaintiff, nor that it. caused or was calculated to cause an improper verdict as a matter of law.
“It is, therefore, ORDERED, ADJUDGED AND DECREED by the Court that the Plaintiff’s Amended Motion for New Trial be and the same is hereby in all things OVERRULED.
“To which action, order, findings, judgment and rulings of the Court the plaintiff in open court duly excepted and gave notice of appeal to the Court of Civil Appeals for the First Supreme Judicial District of Texas at Houston, Texas.
“SIGNED AND ENTERED this 21st day of June, 1966Í” (Emphasis added)

One of the jurors, Mrs. D. J. Westmore-land, was called by Dr. Phillips on the amended motion for new trial. To best sum up her testimony, she took the position that the operation had been paid for by the workmen’s compensation insurance carrier, that he had already been paid, or was being paid, workmen’s compensation insurance and was trying to recover twice for the same injury. She further took the position that Goodnight was not entitled to anything for his pain and suffering. She testified very positively that there was nothing said about the agreement having to be in writing. There was more evidence that constituted misconduct as a matter of law.

Rule 327, Tex.R.Civ.P., formerly Art. 2234 of the Rev.Civ.Stat., reads as follows:

“Where the ground of the motion is misconduct of the jury or of the officer in charge of them, or because of any communication made to the jury or that they received other testimony, or that a juror gave an erroneous or incorrect answer on voir dire examination, the court shall hear evidence thereof from the jury or _ others in open court, and may grant a new trial if such misconduct proved, or the testimony received, of the communication made, or the erroneous or incorrect answer on voir dire examination, be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.” (Emphasis added)

In the case of Wair v. State, Tex.Civ.App.1961, 349 S.W.2d 637, W.R., N.R.E., this court reversed the judgment of the trial court on the ground that it appeared beyond question and “as a matter of law” that misconduct did occur; and, in the alternative, if there was some evidence to support the trial court’s implied finding of “no misconduct”, then we held that the finding was against the overwhelming weight and preponderance of the evidence. The Supreme Court, 163 Tex. 69, 351 S.W.2d 878 (1961) in a per curiam opinion, held:

“The question is whether this finding of the trial judge should be tested by (1) the great weight and preponderance of the evidence, or by (2) abuse of discretion.”

The Supreme Court then went on to hold:

“ * * * We hold that the occurrence of jury misconduct was conclusively proved as a matter of law and that the trial court clearly abused its discretion in not granting a new trial. Probable injury of a jury’s misconduct, once misconduct has been found to have occurred, is a question of law for the trial court and reviewing courts to determine from a review of the entire record, and from such a review we conclude that the respondents probably were injured from the quotient verdict. City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259 (1944).
“The application for writ of error is therefore refused, no reversible error.”

The trial court found as a fact “that the jury did discuss workmen’s compensation insurance and did not consider the fact that the medical expenses had been paid by the workmen’s compensation carrier”, but he concluded, “as a matter of law, that such discussion was not reasonably calculated to be prejudicial to appellant, and prevented him from having a fair and impartial trial. With this finding, we do' not agree. Since it is clearly a question of law, we follow the Supreme Court of Texas in State v. Wair, supra, that such holding was a clear abuse of his discretion. Wilson v. Scott, Tex.1967, 412 S.W.2d 299. It is a well known principle of the law that a person may be injured while in the course of his employment and recover workmen’s compensation, and, in some cases, can sue the wrongdoer and recover additional money. This is so well settled that the citation of authority is unnecessary. We hold that the occurrence of jury misconduct, and, as a matter of law, probably resulted in injury to appellant and that the trial court clearly abused its discretion in not granting a new trial. Wair v. State, Tex.Civ.App., 349 S.W.2d 637, supra. The point of error is sustained.

By points 3 and 17 appellant says the trial court erred in accepting the return of the jury’s verdict because the same was incomplete in that they failed to answer Special Issue No. 3 and in overruling his exceptions to the court’s charge as to the Issues 8 and 9. Issues 3, 8 and 9 inquired about the loss of blood supply to the left testicle. Had the jury answered Special Issue 3, Special Issues 8 and 9 were not necessary. The loss of blood supply to the left testicle could have been caused by the injury itself, by closing the inguinal ring too tight, by the spermatic cord being swollen at the time of the operation, or it could have been caused by post-operative swelling. It was a fact question and could not be answered “as a matter of law”. Since the case has to be tried again, these points are sustained.

By his 20th point appellant complains of error of the trial court in sustaining exceptions to a plea of res ipsa loquitur. There are only very, very few instances where a pleading of res ipsa loquitur is applicable in medical malpractice cases. Where negligence is alleged against a doctor, it must be proved by expert medical testimony before the case can be developed. The doctrine of res ipsa loquitur is not applicable and recovery cannot be had without medical proof that the negligence actually occurred. Shockley v. Payne, Tex.Civ.App. (1961), 348 S.W.2d 775; Bell v. Umstattd, Tex.Civ.App. (1966), 401 S.W.2d 306; and, Louisell and Williams, Trial of Medical Malpractice Cases, § 14.05 and 14.06. The point is overruled.

It is not necessary to discuss the other points of error. I have examined them carefully and will say this: Where an issue of fact is made by the pleadings and the evidence, the issue must be submitted and where there is any damages or injuries shown and a special issue is submitted the jury must place a value thereon. Be that as it may, all other points of error are overruled.

The judgment of the trial court is reversed and the cause is remanded.


author: O’QUINN, Justice.

text:
    Marlin MILLER et al., Appellants, v. Robert S. CALVERT, Comptroller et al., Appellees.
    No. 11524.
    Court of Civil Appeals of Texas. Austin.
    Sept. 13, 1967.

      McCall & McCall, LeRoy McCall, Ham-shire, for appellants.
    Crawford C. Martin, Atty. Gen., George Cowden, First Asst. Atty. Gen., A. J. Car-rubi, Legal Asst. Atty. Gen., John R. Grace, Kerns B. Taylor, Asst. Attys. Gen., Austin, for appellees.
   O’QUINN, Justice.

Mary Loper Collier and L. I. DeCordova owned a tract of land in Spindletop Heights Subdivision in Beaumont which they leased to Marlin Miller of Chambers County. Pursuant to terms of the lease, Miller erected a building on the land and rented on a month-to-month basis to a tenant who in 1962 operated the "Derrick Club” on the premises.

The “Derrick Club” was subject to the state admissions tax imposed under Article 21.02, Chapter 21, Title 122A, Taxation-General, V.A.T.S. The taxes for the months of January through September of 1962 became delinquent in the amount of $1,485.00. The taxes were not paid, and the State filed a tax lien on the property in November, 1964, under provisions of Articles 1.07, 1.07A, 1.07B, and 21.04(2) of Title 122A, Taxation-General, recorded in the “State Tax Liens” records of Jefferson County.

In December of 1965 the State initiated steps to sell the property to satisfy the tax claim against the operator of the “Derrick Club.” The appellants, owners and lessee of the property, in order to prevent the property from being sold under the tax lien, paid the taxes in the sum of $1,485 under protest as provided under Article 1.05, Title 122A.

The owners of the property and their lessee brought this suit to recover the taxes paid by them under protest. These plaintiffs moved for summary judgment and were overruled by the trial court. The case was tried before the court without a jury. The district court found for the State, awarding recovery of taxes in the sum of $1,485, and decreed that the plaintiffs take nothing.

Appellants have perfected their appeal and assigned two points of error. Appellants contend that Article 1.07 as amended in 1961 repealed the provision for tax liens under Article 21.04(2), and that even without such repeal, the lien under Article 21.04 (2) would not attach to property not owned by the amusement operator although used in the business.

We overrule these assignments of error and affirm the judgment of the trial court.

Appellants take the position that the lien on all property used as a place of amusement, as provided in Article 21.04(2) has been repealed by the amendment of Article 1.07 because the lien in Article 21.04(2) is in conflict with the lien in Article 1.07 as amended in 1961. (Acts 1961, 57th Leg., ch. 104, secs. 1, 2 and 3, p. 201).

Article 1.07 was a part of the original enactment in 1959 of Title 122A, which also contained Article 21.04(2). (Acts 1959, 56th Leg., 3rd C.S., ch. 1, p. 187).

The act of 1959 revised and rearranged certain statutes of Title 122 and certain other laws of the State relating to taxation into a new title designated “Title 122A, Taxation-General.” This description is expressly set out in the caption of the law.

The context of Title 122A, consisting of 24 chapters, embraces numerous levies of taxes. The Title provides varied and sundry administrative and procedural processes, as well as a number of different methods for enforcement and imposing penalties.

The amendment of 1961 reenacted Article 1.07 substantially as it had appeared in the act of 1959, but added a proviso requiring certain liens on real estate to be recorded before the lien should become effective “against any mortgagee, holder of a deed of trust, purchaser, pledgee, or judgment creditor acquiring title, lien or other right or interest * * *.”

Two new sections, Articles 1.07A and 1.-07B, were added in 1961, prescribing the type of record to be adopted and used by the county clerk and fixing the recorded lien upon all real property presently owned or later acquired by the taxpayer in the county where the lien is recorded.

The first sentence of Article 1.07 was unchanged in the 1961 amendment except for the addition of a clause referring to the change to be made subsequently in the statute. The first sentence, with the added clause noted, reads as follows:

“All taxes, fines, penalties and interest due by any individual, firm, association, joint stock company, syndicate, copartnership, corporation, agency, trustee or receiver to the State of Texas, by virtue of this Title, shall be a preferred lien, first and prior to any and all other existing liens, contract or statutory, legal or equitable, and regardless of the time such liens originated, subject, however, to the modification hereinafter contained, upon all the property of any individual, firm, association, joint stock company, syndicate, copart-nership, corporation, agency, trustee, or receiver.” (Emphasis denotes added clause).

A reading of this sentence shows clearly that the lien made the subject of Article 1.07 is the lien normally derived from the liability of the taxpayer. The next sentence in the article, reenacted in 1961 without change, reads as follows:

“This lien shall be cumulative, and in addition to the liens for taxes, fines, penalties, and interest now provided by law, and shall attach as of the date such tax or taxes are due and payable.”

In the 1961 amendment the legislature at this point inserted the provision requiring a tax lien affecting real estate to be recorded before it could be effective as to the interests of “any mortgagee, holder of a deed of trust, purchaser, pledgee, or judgment creditor” who acquired a title or interest in the property before notice of the State’s lien was recorded.

Section 4 of the amendatory act of 1961 reads as follows:

“All laws and parts of laws in conflict with the provisions of this Act are hereby repealed; and, in case of such conflict, the provisions of this Act shall control and be effective. This Act shall have no application to litigation pending in any court of competent jurisdiction in this State.” (Acts 1961, 57th Leg., ch. 104, sec. 4, p. 201, effective May 5,1961).

We believe that passage of the amendment of Article 1.07 in 1961, with the act containing the quoted repealing clause, did not repeal any part of Article 21.04. To hold otherwise would be to suggest that the legislature, by adding a provision to Article 1.07 for recording liens, intended to make sweeping changes with regard to liens in other chapters of Title 122A, including chapter 21 containing Article 21.04.

Chapter 1 of Title 122A, in which Article 1.07 appears, is the “General Provisions” chapter and does not impose any State tax. The specific, or special taxes, levied by Title 122A are found in chapters 2 through 23, both inclusive, and chapter 24 deals with “Allocation of Tax Revenues.”

A general repealing clause in an act amending one or more articles in chapter 1 of Title 122A, if construed to repeal special provisions for taxes and liens contained in 23 other chapters of the Title, would put the legislature to the task of reenacting the entire Title in order to avoid such repeal. Article 1.07 concerns taxes due by taxpayers “by virtue of this Title,” and is made expressly cumulative of the special and particular provisions of Title 122A contained in other chapters. Article 21.04(2) is not general, but special, and deals particularly with the “Admissions Tax.” This article fixes a “prior lien for all delinquent taxes and penalties provided for in this Chapter on all property used by the owner or operator of any place of amusement as designated in this Chapter. * * *” (Emphasis added).

The phrase in an Act that “all laws or parts of laws in conflict with the provisions of this Act are repealed” is subject to the same rules of interpretation as other enactments and the intent must prevail over the literal construction. First National Bank of Giddings v. Lee County Cotton Oil Co. (Tex.Com.App., 1925), 274 S.W. 127; Ex parte Coleman, 157 Tex.Cr.R. 37, 245 S.W.2d 712. If no repugnancy between the prior law and the later act can be found, the court may not find that the later act repeals the prior statute. Gaddes v. Terrell, 101 Tex. 574, 110 S.W. 429. We believe there is no repugnancy between Article 1.07 as amended and Article 21.04 and that the two statutes will stand together.

The amendment of 1961 did not contain any language expressly repealing the provisions of any other law. The repealing clause was general. For the amendment of 1961 to repeal the provisions of Article 21.-04, it is necessary to indulge in repeal by implication, which is not favored. The two laws should be construed in such manner as to allow both to stand. Townsend v. Terrell, 118 Tex. 463, 16 S.W.2d 1063 (Tex.Com.App.).

Since Article 1.07 as amended is general in its terms, and Article 21.04 is specific in its terms, the specific statute more clearly evidences the intention of the legislature and will control, even if a conflict should exist, which we do not find. Townsend v. Terrell, supra, 16 S.W.2d 1063, 1064, col. 1. In accord with this rule are Fortinberry v. State, 283 S.W. 146 (Tex.Com.App., 1926, opinion adopted by Sup.Ct.); Hallum v. Texas Liquor Control Board, Tex.Civ.App., Dallas, 166 S.W.2d 175 (writ ref.).

In Jefferson County v. Board of County and District Road Indebtedness, 143 Tex. 99, 182 S.W.2d 908, the Supreme Court considered a statute in which the legislature had expressly termed the act “cumulative,” but provided that if the act was in conflict with either general or special laws, the provisions of the act would prevail over the prior laws. The Court held that this repealing clause was not sufficient to repeal a special law, even though in some respects it might be inconsistent.

In this connection the Supreme Court said:

“Ordinarily, a general repealing clause of inconsistent Acts does not, when contained in a general Act, operate to repeal a local or special Act, even though the provisions of the two Acts are in some respects inconsistent * * *. The intention to repeal special Acts embodying conflicting provisions must be clearly evidenced.” 182 S.W.2d 908, 915, col. 1.

In seeking to discover the legislative intent, a court may look to all the provisions of the enactment and examine the general course and scheme of legislation on the subject. 53 Tex.Jur.2d, Statutes, sec. 163, p. 237. We consider the legislative history of Title 122A a significant part of the general course and scheme of legislation on the subject of taxation involved in this case.

Prior to 1959, when the legislature enacted the statutes now designated “Title 122A, Taxation-General,” the State had two general lien laws. Article 1.07 as it appeared in the act of 1959 was adopted verbatim from the language of former Article 7057e of Title 122, which provided a general lien for occupation and certain other taxes. A general lien was provided for the State’s gross receipts taxes under former Article 7083b of Title 122 in language similar to the terms of Article 1.07.

The State imposed numerous taxes under old Title 122. Not more than thirteen or fourteen of the specific taxing provisions of Title 122 contained provisions creating liens for nonpayment of these taxes. The lien for all other taxes, except property taxes, was found in the two general lien laws, Articles 7057e and 7083b of Title 122.

The special tax laws containing specific liens were amended at various times after the general lien laws became effective, and the specific lien was in each instance retained. As new special taxes were passed by the legislature, many contained specific lien provisions. An example is former Article 7047Z, the “Miscellaneous Excise Tax,” now chapter 20 of Title 122A.

The Admissions Tax, under consideration in this case, is another example of a tax measure enacted by the legislature with specific provisions for the lien. This tax was imposed originally in 1936, and through subsequent amendments in 1953, 1957, and 1959, the legislature retained and reenacted the specific lien provision now found in Article 21.04(2).

We believe it is implicit in the scheme and course of legislation related to Title 122A that the legislature intended the general lien law to apply only to those taxing statutes which did not contain a specific lien provision.

The specific lien provision of a special tax statute was applied in Gummelt v. Southwestern Indemnity Company, Tex.Civ.App., Waco, 363 S.W.2d 379 (writ ref., n.r.e.), although a general lien statute substantially identical with Article 1.07 appeared to be in conflict with the special lien statute.

The suit involved in the Gummelt case was filed in 1958, prior to enactment of Title 122A. At that time Article 7083b, a general lien statute, appeared to oppose the special lien under Article 7065b-14(g) (Article 10.17, Title 122A). The general lien statute purported to apply to all taxes due “by virtue of this Act,” it was expressly cumulative and it contained a repeal of all laws or parts of laws in conflict. Its terms were precisely the same as Article 1.07 with respect to the particular statutory language under consideration.

The court followed State v. Wynne, 134 Tex. 455, 133 S.W.2d 951, holding that the State had a lien superior to all other liens, regardless of when created, and that the lien applied to “all property used in the fuel dealer’s business, even though the dealer does not own the property.” 363 S.W.2d 379, 381, col. 1. The court in the Gummelt case observed that the special lien statute “resolves such lien to be specific and perfected, as distinguished from an inchoate and general lien.”

Legislative activity in tax lien matters was examined by this Court in Allied Finance Company v. State, Tex.Civ.App., Austin, 387 S.W.2d 435 (writ ref., n.r.e.), in which the rule of State v. Wynne was followed.

The legislature with commendable foresight incorporated in the act adopting Title 122A a section titled, “Construction of this Act.” That provision, section 3 of the enactment, reads as follows:

“With respect to the provisions of this Act which tax transactions subject to taxation by the State prior to the effective date of this Act, this Act shall be considered to be the equivalent of a revision by amendment even though it is in the form of an enactment of new law and repeal of the old law. This Act shall be construed to make a substantive change in the prior law only where the language of this Act manifests a clear intent to make such a change.”

The entire legislative history of the tax levies and liens under Title 122A demonstrate a changing and evolving field of revenue legislation. It is patent that the legislature anticipated amendments would be made from time to time. The whole structure of special tax levies and corresponding specific liens should not be threatened with each amendment of a general provision, unless a clear intent is manifest to repeal the special provision. Article 1.07 as amended does not “manifest a clear intent” to repeal Article 21.04(2), but on the contrary Article 1.07 purports to be cumulative of the provisions of Article 21.04(2).

Under their second assignment of error appellants make the contention that even if Article 1.07 as amended did not repeal Article 21.04(2), the fixing of a lien “on all property used by the owner or operator of any place of amusement” will not permit the lien to attach to any property not belonging to the owner or operator of the business.

It is undisputed in this case that owners of the land had no interest in the business being operated on their property. It is also agreed that their lessee, who constructed the building pursuant to his lease, and rented the property to the operator of the “Derrick Club,” likewise had no interest in the business except to receive the monthly cash rentals.

It further appears in this case that the State was unable to locate and obtain service of process in its cross-action against the operator, and was permitted by the trial court to take a nonsuit as to the operator.

We have considered in another cause, decided by this Court this date, the issue presented under the second ássignment of error. We decided the issue contrary to the position taken by appellants. For this reason, the assignment is overruled without further discussion, and we refer to our opinion in State of Texas v. Rex Rope, Cause No. 11,539, 419 S.W.2d 890.

The judgment of the district court is affirmed.

Affirmed.


author: COLEMAN, Justice.

text:
    Frieda Halleck SAPER et al., Appellants, v. Carl Ray RODGERS et al., Appellees.
    No. 15031.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Sept. 21, 1967.
    Rehearing Denied Oct. 5, 1967.

      W. Douglas Matthews, Houston, Carroll, Matthews & Willatt, Houston, of counsel, for appellants.
    Clawson, Jennings & Clawson, Max H. Jennings, Houston, for appellees.
   COLEMAN, Justice.

This is an action for damages for personal injuries sustained in an automobile-truck collision. After a trial to a jury the trial court, on the motion of the defendant, entered a judgment non obstante veredicto disregarding the answers of the jury finding that one of the plaintiffs failed to keep a proper lookout to the rear, and entered a judgment for the plaintiffs on the remaining findings of the jury. The plaintiffs are appellants.

Appellants predicated their appeal on the proposition that the trial court erred in sustaining the appellees’ motion to disregard the defensive issues on lookout since (1) they were answered favorably to appellees, and (2) there was evidence requiring that the issues be submitted, although the answer returned was contrary to the great weight and preponderance of the evidence. Appellants submit the further proposition that the answers returned in response to the issues on damages were contrary to the great weight and preponderance of the evidence.

Mrs. Saper, the driver of the automobile, testified that she could not honestly say whether she ever saw appellee’s vehicle at any time before the collision. Appellee, Carl Ray Rodgers, the driver of the vehicle owned by appellee, York Transport Company, testified that as he neared the intersection of Travis and Calhoun Streets ir the City of Houston, Texas, at or about 5:3d p. m. the automobile driven by Mrs. Saper moved into the lane in front of his vehicle and stopped suddenly insofar as he was concerned. He explains his statement that she changed lanes in this manner (quoting from appellants’ brief):

“The Defendant driver, Carl Ray Rodgers, testified that he had a green light at the intersection in question from the time he left the intersection one block back, that he intended to go on through the green light at the intersection in question, that Mrs. Saper’s car was not in his lane ahead of him when he glanced in his outside right rear view mirror in order to see if he could change lanes, that when he looked back Mrs. Saper’s car was in his lane ahead of him, that when he looked back he was about three car lengths from the intersection in question and the light had turned yellow, that he assumed Mrs. Saper had changed lanes from the lane to the left of him into the lane he was traveling in, and that when Mrs. Saper stopped her car the light was yellow and not red, that he was intending to go on through the intersection since he was so close to it and the light was yellow, and that for these reasons Mrs. Saper’s stop was a sudden stop for him.” (S.F. 385-395)

The jury found that Rodgers operated the truck more closely behind the car driven by Frieda Saper than such would have been operated by a reasonably prudent person in the exercise of ordinary care under the same or similar circumstances and that this conduct was a proximate cause of the collision. It found that Rodgers negligently failed to keep a proper lookout, which was a proximate cause of the collision.

The jury refused to find that Frieda Sap-er stopped her automobile more suddenly than would have a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances; and it refused to find that just before and at the time of the accident in question Frieda Sap-er turned her automobile into the lane of traffic ahead of the vehicle being driven by Carl Ray Rodgers. The jury then found that just before the accident in question Frieda Saper failed to keep such a lookout for other vehicles to her rear on Travis Street as would have been kept by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances and that this failure was a proximate cause of the accident in question. These issues finding appellants guilty of contributory negligence were the issues disregarded by the trial judge on the motion of appellees.

This action of the trial court constitutes error. Issues may be disregarded if they are supported by no evidence. Only that evidence and reasonable inferences therefrom which support the jury’s findings can be considered by a reviewing court in determining whether these findings have support in the evidence. The negative answers of the jury to the issues on changing lanes and sudden stop do not establish that Mrs. Saper did not change lanes or did not make a sudden stop. The jury merely failed to find from a preponderance of the evidence that she did these things. A special issue may be disregarded, though properly submitted, where it has been rendered immaterial by other findings. If the finding upon such issue creates a fatal conflict with other findings or otherwise affects the legal significance of the verdict and the judgment to be entered, the issue is material and must not be ignored. Here the finding would require the entry of a judgment for the defendants rather than for the plaintiffs, and is, therefore, material. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966).

Appellants urge that the court erred in acting upon the motion to disregard the issues in question since the court had no authority to act on its own motion, and since the issues were answered in favor of the movant.

Rule 279, Texas Rules of Civil Procedure, provides: “ * * * A claim that the evidence was insufficient to warrant the submission of any issue may be made for the first time after verdict, regardless of whether the submission of such issue was requested by the complaining party.” Neither this rule nor Rule 301, T.R. C.P., authorizing the trial court to disregard a special issue jury finding having no support in the evidence, requires that the motion be made by a party only if the answer is unfavorable. No case has been cited deciding the question. The Rules are not so ambiguous as to require interpretation and we decline to add to them words not found therein. The trial court did not err in entertaining the motion.

Appellees have presented a cross-point that if the special issues in question were not properly disregarded, the judgment should be rendered by this Court on the verdict of the jury as returned into court. Appellees state that it was their contention in the trial court that judgment should have been entered on the verdict and that the motion to disregard was presented when the trial court refused to do so. It appears that the trial court indicated that he was inclined to grant a motion for new trial on the ground that the answers to the issues in question were not supported by the evidence, unless one of the parties would present a motion to disregard. Nevertheless, by presenting such a motion appellees led the court into error, and cannot complain on appeal. Northeast Texas Motor Lines, Inc. v. Hodges, 138 Tex. 280, 158 S.W.2d 487 (1942, opinion adopted) ; Reid v. Nortex Construction Company, 366 S.W.2d 870 (Tex.Civ.App., Dallas 1963, error ref., n.r. e.); Panos v. Foley Bros. Dry Goods Co., 198 S.W.2d 494 (Tex.Civ.App., Galv. 1946) ; Pope v. Commonwealth Bonding & Casualty Co., 166 S.W. 1195 (Tex.Civ.App., Texark. 1914, err. ref.) ; Braden v. State, 108 S.W. 2d 314 (Tex.Civ.App., Waco, 1937); Whitehead v. Traders & General Ins. Co., 128 S.W.2d 429 (Tex.Civ.App., Amarillo 1939).

This error does not require a reversal of the case insofar as the rights of Lisa Saper and Michelle Saper, minors, are concerned, since the defense of contributory negligence would not defeat a recovery by the children, passengers in the automobile. Appellants, however, contend that the judgment as to these children should be reversed because the damages awarded are inadequate and the answers made to the damage issues are contrary to the great weight and preponderance of the- evidence. This contention must be sustained with reference to Special Issue No. 22 concerning the physical pain and mental anguish suffered by Lisa Saper. The answer of “None” returned by the jury is contrary to the great weight and preponderance of the evidence.

The jury awarded the sum of $500.00 for the physical pain and mental anguish suffered by Michelle Saper. The evidence would have supported a much larger award. However, a consideration of the entire record fails to demonstrate that the jury was influenced by any improper motives or that the award is obviously wrong. The determination of the sum of money necessary to adequately compensate one for physical pain and mental anguish is a question which should be left to the jury in the absence of improper influence or obvious mistake.

Other assignments of error appear in the brief, but a discussion of these points is unnecessary in view of the judgment of this Court.

In C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966), the Supreme Court remanded the case for a new trial under the authority of Rule 505, T.R.C.P., for the reason that the justice of the case demanded another trial. The facts in that case are quite similar to the facts in this case insofar as Frieda Saper is concerned. Rule 434, T.R.C.P., under the facts of this case, authorizes this Court to remand for a new trial. London Terrace v. McAlister, 142 Tex. 608,180 S.W.2d 619 (1944).

The judgment is affirmed as to Michelle Saper, and ordered severed. The judgment is reversed as to Lisa Saper and Frieda Saper and is remanded for a new trial.

Affirmed in part and in part reversed and remanded.