text:
    Don H. WALTON et ux., Appellants, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, Appellee.
    No. 14286.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 14, 1964.
    Rehearing Denied Nov. 12, 1964.

      Dobbins & Howard, San Antonio, for appellants.
    Samuel L. Egger, San Antonio, for ap-pellee.
   BARROW, Justice.

Appellants, Don H. Walton and wife, Patricia Fuller Walton, mortgagors, brought this suit against appellee, General American Life Insurance Company, mortgagee, to recover the amount paid by a casualty insurance carrier for windstorm damage on the home which had been sold by appellants to Billy Thomas and wife.

Appellants purchased the property in 1955, and in payment therefor gave mortgagee a note in the amount of $21,500, secured by a vendor’s lien and deed of trust. Appellants sold the property in. 1959 to Thomas, who expressly assumed payment of the original note and gave appellants another note in the amount of $12,072.83, secured by a junior deed of trust. Appellee was not a party to the contract between Thomas and appellants. In July, 1961, Thomas asserted two claims for windstorm damage under a casualty insurance policy, and on September 1, 1961, received two drafts totalling $1,273.00 in settlement of these claims. Mortgagee had no knowledge of the windstorm damage to the home and made no independent investigation of either the damage or repairs to the house. The casualty insurance carrier had made the drafts payable to the order of “Billy Thomas, Billie Thomas and General American Life Insurance Company.” Mrs. Thomas brought the drafts to mortgagee and it requested her to execute affidavits that all repairs had been made and paid for by Thomas. Mortgagee then endorsed and delivered the drafts to Mrs. Thomas. Shortly thereafter, Thomas defaulted on both notes and appellants paid off the original note to mortgagee.

Appellants urge that mortgagee was required under the original deed of trust, to either credit the insurance proceeds on the original note or see that all were used in repair of the windstorm damage. Appellants further assert that they had an equitable lien on the proceeds as mortgagees under the junior deed of trust A take-nothing judgment was entered after a non-jury trial.

Formal findings of fact and conclusions of law were not requested, however, the judgment contains three findings: “1. The covenants in the deed of trust are between the Mortgagor and the Mortgagee, and are in favor of the Mortgagee, and accordingly, would not extend to one not a party to the contract. 2. That the lender could waive at any time any of said covenants. 3. (Stricken from the judgment on motion of appellants.) 4. That the plaintiff does have a true cause of action against the owner of the property, and may assert a right of action' against the insurance company.”

The original deed of trust provided that as additional security for the indebtedness, mortgagors would keep the property insured as required by mortgagee with any loss payable to the mortgagee, as its interests might appear. Mortgagors were required to maintain an escrow fund with mortgagee to pay the insurance premiums on the casualty insurance policy which would be kept by mortgagee. The deed of trust provided that in the event of a loss, the sums collected under said insurance policy, or any part thereof, “at the option of the Company (Mortgagee) may be applied as payment on the indebtedness hereby secured, or to the restoration or repair of the property so destroyed or damaged.”

The junior deed of trust executed by the Thomases to secure payment of their own note to appellants also contained a clause requiring Thomas to insure the property to secure the indebtedness owed appellants. with a loss payable clause substantially similar to that in the original deed of trust.

A casualty, insurance policy providing windstorm coverage was issued on April 8, 1960,.on behalf of Thomas and paid for from the escrow fund. The original of this policy was kept in the home office of .mortgagee at St. Louis, Missouri. Although the policy provided that any loss should be payable to mortgagee and appellants “as their interest may appear at time of loss,” appellants’ names were not on the drafts given Thomas.

The original deed of trust expressly authorized mortgagee, at its sole option to permit the use of the insurance proceeds, in repair or restoration of the damage, Mortgagee relied on the affidavit of Mrs. Thomas that all repairs necessary to restore the property to as good condition as immediately prior to said loss had been -made and paid for by Thomas. Appellants urge that mortgagee was negligent in delivering the proceeds to Mrs. Thomas in view of the poor payment record of Thomas. Thomas was late with every note payment and at the time the drafts were presented, he had not paid the July, August or September payments. Mrs. Thomas on this occasion gave mortgagee a check for the July and August payments, but the check was returned for im sufficient funds. The trial judge, however, heard' all the evidence and, by his judgment, impliedly found no negligence on the part of mortgagee.

Appellants urge that mortgagee is liable as a matter of law for any diversion of the insurance proceeds, and as authority for this proposition cite Conn. Mutual Life Ins. Co. v. Scammon, 117 .U.S. 634, 6 S.Ct. 889, 29 L.Ed. 1007. It was there held that the mortgagee took the risk of the diversion where, contrary to the provisions of the deed of trust and without the consent of two of the mortgagors, he delivered the insurance proceeds to the third mortgagor for the pur-pose of rebuilding the burned premises. The deed of trust there provided that the insurance was collateral security for the joint debt and that mortgagee was required to-apply the proceeds in event of loss to payment of the debt. Where the third mortgagor did not apply the proceeds in rebuilding the property, the other two mortgagors were entitled to have the amount credited on the debt. See also, Carlin v. Frey, 157 App.Div. 84, 141 N.Y.S. 580; 59 C.J.S. Mortgages § 328.

The rule is contrary where, as in our case, the insurance proceeds are delivered to the owner by the mortgagee in accordance with the terms of the deed of trust. In this situation the second mortgagee cannot complain since he took subject to the first mortgage with all its provisions. Meltzer v. Blumberg, 133 Misc. 233, 231 N.Y.S. 513.

The deed of trust executed by appellants gave mortgagee the option of applying the insurance proceeds upon the debt or in repair of the premises. Mortgagee agreed to the latter option. We cannot say, as á matter of law, that mortgagee was negligent in delivering the proceeds to Mrs. Thomas after she executed affidavits that all repairs had been made and the property was restored to the condition it was in immediately prior to the windstorms

Appellants assert that they were entitled to the insurance proceeds as mortgagees under the junior deed of trust executed by Thomas. Appellants did not attempt to prove the amount of the windstorm damage before or after the repairs by Thomas. The proof of loss submitted to the casualty insurance carrier by Thomas was offered in evidence only for a limited purpose and not as proof of the damage. Appellants did not see the property until about six months after the windstorm claims were paid. Appellants testified that .at this time the property showed vandalism damage, and a claim for this damage was asserted by appellants and paid by the casualty insurance carrier. There was therefore no showing that the mortgaged property was of less value be•cause of the asserted diversion of the insurance proceeds.

A mortgagee would be bound to pay to the junior mortgagee any proceeds remaining after discharge of the original note. Parker v. Ross, 73 Tex. 633, 11 S.W. 865. Here the proceeds were substantially less than the amount owed to mortgagee and therefore mortgagee properly used the proceeds for repair of the property as authorized by the deed of trust.

The judgment is affirmed.


source: Caselaw Access Project

author: POPE, Justice.

license: Public Domain

text:
    The HOME INDEMNITY COMPANY, Appellant, v. E. J. GONZALEZ, d/b/a Laredo Poultry & Meat Company, Appellee.
    No. 14281.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 21, 1964.
    Rehearing Denied Nov. 18, 1964.

      J. G. Hornberger, Laredo, and Green, Green & Wiley, San Antonio, for appellant.
    Hall, Hall & Juarez, Laredo, for appellee.
   POPE, Justice.

Plaintiff, E. J. Gonzalez, recovered a judgment against The Home Indemnity Company for $5,000.00, which was the full amount of a fidelity bond, issued to indemnify Gonzalez against losses caused by the fraud or dishonesty of Jessie Santos, who was Gonzalez’s partner in the operation of Laredo Poultry & Meat Company. ■ Gonzalez also recovered a nil dicit judgment against Santos for $8,199.00, but he has not appealed. The judgment was rendered upon jury findings that Santos caused losses totaling $8,199.00 by his fraud or dishonesty. We reverse and render the judgment since the proof shows losses in the business, but there is nothing more than conjecture and speculation in support of the necessary implied finding that the losses occurred during the term of the bond, and the finding that they were caused by Santos’ fraud or dishonesty.

Gonzalez and Santos began business on December 7, 1961, pursuant to an oral agreement. Gonzalez contributed $10,000.00 in cash to begin the business. On December 30, 1961, they reduced their agreement to a formal written contract, and on that same date The Home Indemnity Company-issued its fidelity bond. It protected Gonzalez against losses caused by Santos’ larceny, theft, embezzlement, forgery, misappropriation, wrongful abstraction, wilful misapplication, or any other act of fraud or dishonesty after that date. After what appeared to be a good beginning, the company soon was unable to pay its bills and it was-closed during April, 1962.

Gonzalez had the burden to prove that the losses occurred during the term' of the bond. Royal Indemnity Co. v. North Texas Nat. Bank, Tex.Com.App., 25 S.W. 2d 822, 34 S.W.2d 249; Western Indemnity Co. v. Free and Accepted Masons of Texas, Tex.Com.App., 268 S.W. 728; 45 C.J.S. Insurance, § 803. He had to prove that the losses resulted from Santos’ acts of fraud or dishonesty as stated in the bond,, and proof of his negligence, carelessness or incompetence does not satisfy this burden. Great American Insurance Co. v. Langdeau, Tex., 379 S.W.2d 62; Village of Plummer v. Anchor Casualty Co., 240 Minn. 355, 61 N.W.2d 225; American Surety Company of New York v, Capitol Building & Loan Ass’n., 97 Colo. 510, 50 P.2d 792. The burden requires proof of more than the fact that the business lost money, Hartford A. & I. Company of Hartford, Conn. v. Hattisburg Hardware Stores, Miss., 49 So.2d 813, 23 A.L.R.2d 1053, or that there was an unexplained loss of funds or merchandise. Salley v. Globe Indemnity Company, 133 S. C. 342, 131 S.E. 616, 43 A.L.R. 971.

The proof does not show that the losses occurred after, instead of before December 30, 1961, the beginning date of the bond. We have no beginning date concerning the accounts of the business until January 24, 1962, seven weeks after the business began. This information consisted only of an itemized inventory which showed merchandise worth $9,628.88 and a list of accounts receivable amounting to $4,155.05, for a total of $13,783.93. Plaintiff had contributed $10,000.00, so he concluded that the business had made a $3,783.93 profit after seven weeks of business. Gonzalez uses these. two itemized lists as the beginning basis to prove the losses.

We do not accept this partial information as proof of even the approximate condition of the business as of January 24th. The lists ignore all expenses- during the whole seven-week period between December 7, 1961, and January 24, 1962. They ignore the costs of merchandise and vehicles which had been purchased, rent, storage of merchandise at three different places, salaries for five employees, utilities, interest on notes, gasoline, Santos’ drawing account of $80.00, to which he was entitled under his contract, and all other expenses. We have no information about income from sales •during that period and do not know whether sales were made for profit or loss. So far ■as this record shows, the company may already have sustained its losses.

On February 28, 1962, after The Home Indemnity Company had given notice that it 'intended to cancel its bond, a balance sheet and a profit and loss statement were prepared. This information showed assets in '.the sum of $10,461.02 and liabilities of $9,370.82, consisting chiefly of accounts payable in the sum of $5,038.37, and notes payable in the amount of $3,736.63. It showed that the company had lost $8,909.80 up to that date, and on the basis of estimates and partial records showed losses from sales alone in the sum of $3,736.63.

The jury found that the business lost $8,199.00 after December 30, 1961, but there -is no way for anyone to know this, even approximately. Until January 24, 1962, there was no information as a basis for any starting point. How much loss was attributable to the period prior to December 30 is unknown. Gonzalez, as proof of losses between January 24, 1962, and February 28, 1962, draws our attention to the disparity between the inventories on hand on those two-dates. The January inventory showed a worth of $9,628.88, but by February 28 it had shrunk to $2,051.80. He reasons that the difference in these two items should be reflected in increased bank deposits which were not made. According to the available records and the evidence of plaintiff’s accountant, the sales records were incomplete, were evidenced by unnumbered sales-tickets, and the tickets bore the name of another company, Laredo Poultry & Meat Company’s predecessor. Plaintiff’s accountant stated that customers made some payments of their bills to this predecessor firm, but he was unable to determine how much was so paid. The records disclose no system by which anyone could determine how much was lost after December 30, 1961.

Santos’ fraud or dishonesty was not proved. There was no direct evidence of his fraud or dishonesty during the bond period, but plaintiff relies upon inferences from several facts which we shall mention. Santos was the general manager and was duty-bound to keep accurate records but did not. Plaintiff’s bookkeeper and accountant testified that the records were inept and incomplete. These books and records, however, were plaintiff’s — not the bonding company’s. The difficulty of proof of fraud and dishonesty did not excuse it. Continental Casualty Co. v. First Nat. Bank of Temple, 5 Cir., 116 F.2d 885, 887, 135 A.L.R. 1141. Proof of incompetence is not proof of dishonesty. Irvin Jacobs & Co. v. Fidelity & Deposit Co. of Maryland, 7 Cir., 202 F.2d 794, 37 A.L.R. 889; 9 Appleman, Insurance Law & Practice, § 5667. We do not have proof of alterations or concealment of records as in Employers’ Liability Assur. Corp. v. Kolp, Tex.Civ.App., 149 S.W.2d 209, nor proof that Santos personally received the business money and did not turn it over to the business, as in National Surety Co. v. McCutcheon, Tex.Civ.App., 270 S.W. 1062. Santos admitted that some undetermined amount of money was not actually deposited in the bank because the business was more or less run out of the cash register. As money was collected, bills were paid in cash or by endorsing checks over to creditors. The proof fails to show that Santos-was the only one who handled these transactions. There were five employees who were in a position to take company funds while Santos was traveling for the business or was gone. 9 Appleman, Insurance Law & Practice, § 5669. Gonzalez argues that Santos admitted taking money, but the record shows only that Santos testified, “Well, I don’t know, I don’t know anything that happened. I spent some of the money but not all of it.” Santos, as general manager, actually spent most of it, but this does not prove he spent it dishonestly. He consistently denied any wrongdoing and his statement that he “spent” it does not mean, as argued, that he “took” it. By his contract, he was entitled to draw $80.00 a week, and' to share in seventy per cent of the profits after the first month, and sixty per cent thereafter. Santos, prior to the beginning date of the bond, used $300.00 to buy a cantina. This was known to Gonzalez at the time he made his written contract on December 30, and was before the date of the bond. This is immaterial to the liability of the bonding company and is the only instance of proof of misapplication of money in an amount which is determinable with any fair degree of certainty. The fact that Santos failed to appear at the trial is also taken as an inference against his honesty. Santos- testified by deposition and he was fully examined and cross-examined. The whole problem in this case is summed up rather well by Gonzalez’s accountant, who - stated that by taking an estimated mark-up and using it on an estimated, total stock of merchandise, he could estimate that the. business lost $8,500.00. That is about as close as we can come to any method to estimate the losses. The accountant Stated there were several explanations for the Tosses. The merchandise could have been sold for less than cost; there may have been too many employees. The accountant’s concluding remark in a written report was “the operation was very prone to the misapplication of goods and monies by anybody.” This kind of evidence is supposition and is too speculative to prove dishonesty in that or any other amount.

This case is governed by'the principles expressed in Continental Casualty Co-, v. First National Bank of Temple, supra,, which states: “Before the plaintiff can recover any part of its claim, it is necessary to show that a direct loss was actually sustained by the dishonest acts of its employees, since the bond sued on became effective and it should not leave that question in a condition of mere speculation. If it has permitted records to become lost or destroyed, or finds it impossible to make the proof for other reasons, then that is not the fault of the defendant. The bank still carries the burden of establishing its loss, within the terms of the bond, by a fair preponderance of the evidence.” Likewise, Cobb v. American Bonding Co. of Baltimore, 118-F.2d 643, is in point. “Under the bookkeeping system used by the plaintiffs shortages would be reflected by any number of things other than dishonest conduct of employees. * * * Viewing all the evidence in the light most favorable to the plaintiffs it, at most, creates no more than a surmise- or suspicion that some of the shortage reflected by the inventories might have been due to dishonesty on the part of an employee or employees. Verdicts may not. rest upon guess or conjecture, and where,, as here, the probative force of all the evidence of the plaintiff does not go beyond the point of creating a mere surmise or suspicion, it becomes the duty of the trial court to instruct a verdict for the defendant.”

Plaintiff has failed to prove that the losses occurred during the effective period of the bond, and that they were caused by Santos, the only one whose fidelity was guaranteed. That Santos was guilty of fraud and dishonesty is indicated by nothing more than speculation and suspicion which is no evidence. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

The judgment is reversed and here rendered that appellee take nothing against appellant. That part of the judgment not appealed from is affirmed.

On Motion for Rehearing.

Plaintiff, Gonzalez, by his motion for rehearing, properly objects to our comments about Santos’ admissions that he took or spent some of the money, as well as his failure to appear and defend himself against the misapplication of the funds. Plaintiff correctly argues that these were matters for the jury to interpret, and that we can not substitute our evaluation for the jury’s. Plaintiff also calls our attention to the fact that Santos used the $300.00 to buy a cantina in December, before the date of the bond issued by defendant, but that plaintiff did not discover it until after he and Santos made their contract on December 30. We make these factual corrections, but the record still fails to show, in dollars and cents, how much, if any, Gonzalez misapplied.

The motion for rehearing is overruled.


author: DAVIS, Justice.

text:
    KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant, v. The MAURICEVILLE INDEPENDENT SCHOOL DISTRICT et al., Appellee.
    No. 7584.
    Court of Civil Appeals of Texas Texarkana.
    Nov. 3, 1964.
    Orgain, Bell & Tucker, Beaumont, for appellant.
    E. G. Aycock, Fort Worth, for appellee.
   DAVIS, Justice.

This is a tax suit. For the purpose of this appeal, it will have to be presumed that the facts alleged in the pleadings are true. Plaintiff-appellant, Kansas City Southern Railway Company, sued defendant-appellee, The Mauriceville Independent School District, et al, over the taxes due on the property within the school district for the year 1962. According to the pleadings, appellant, acting by and through its general Tax Commissioner, did, under oath, render to the Tax Assessor-Collector of the appellee for the year 1962 all of its property located within the school district that was subject to taxation, in accordance with the requirements of the law.

Thereafter, appellee notified appellant that the Board of Equalization of the School District would attempt to increase and raise the valuation of the properties included in said rendition to values over and above those contained in the rendition, and to place the property on the tax rolls of said school district at such increased valuation. Appellant appeared before the Board of Equalization of said school district at the appointed time and place for the purpose of objecting to any increase in valuation. At the hearing, it offered testimony and evidence in support of the value of the property set forth in the aforementioned rendition. No evidence of any other nature was presented to or heard by the Board of Equalization of said school district concerning the value of said property for tax purposes.

After the hearing, appellant was notified by the Tax Assessor-Collector that the Board of Equalization of said school district had increased the values on the property for tax purposes for the year 1962 to values grossly in excess of the values set forth in said sworn rendition and established by the uncontroverted evidence at such hearing before the Board of Equalization.

On January 17, 1963, appellant tendered to the Tax Assessor-Collector of said school district the sum of $1,307.52 as full and final payment of taxes due and owing to said school district for the year 1962. The tender of such money offered in full and final payment of all taxes owing to said school district by appellant for the year 1962 was refused by the Tax Assessor-Collector of said school district. The appellant then sued the appellee and conditionally tendered the sum of $1,307.52 into the registry of the court as full and final payment of all taxes due and owing by appellant to said school district for the year 1962.

There were pleadings that appellee had attempted to increase the value of such property over and above that shown by the swor-n rendition and the evidence adduced at the hearing before the Board of Equalization. It alleged that the basis of such increased values were not done in compliance with the law, were void, unconstitutional, illegal, and of no force and effect for several reasons. It then listed the reasons and asked for affirmative relief by way of permanent and perpetual injunction against the appellee. It sought to permanently and perpetually enjoin the appellee from collecting, or attempting to collect taxes from the.appellant over and above the amounts conditionally tendered into the registry of the court; from raising or attempting to raise the values placed, or to be placed, upon the properties of appellant within said School District for the year 1962 over and above the values as set forth in the sworn rendition and established by uncontroverted evidence adduced at said hearing; that a writ of injunction issue directing the appellees to place the properties of said appellant within said School District on the tax rolls of said District for the year 1962 at the values set forth in said sworn rendition and so established by the evidence at the hearing; enjoining the appellees from raising or attempting to raise the values of said properties on the tax rolls of said School District to any values over and above those set forth in said sworn rendition and ¡established by the evidence at the hearing; from levying assessments on the basis of any other values; from collecting or attempting to collect any taxes from the appellant on the basis of any other values or on the basis of any other levies or assessments based upon any other values than the values set forth in such sworn rendition and established at such hearing; that judgment be entered declaring the assessments levied against properties of appellant involved in such School District to be grossly excessive, to be arbitrary and discriminatory, and to be void and unenforceable, and that the only amount of taxes due and owing said School District for the year 1962 is the amount conditionally tendered into the registry of the court; and for costs of suit, etc.

The appellee answered by several special exceptions, a general denial, and a cross-action wherein the alleged value of the property had been increased and that there was then owing to the appellee a total of $3,255.54.

The appellee then filed a motion for payment of the sum of $1,307.52 that had been conditionally tendered into the registry of the court to the School District. In the motion, it alleged that the appellant contends’ that the money conditionally tendered into the registry of the court is the total amount of taxes due the appellee for the year 1962. It then alleged that there was no dispute as_ to the'ownership of the money that had been conditionally tendered into the registry of the court by the appellant, and alleged that an additional sum of $1,948.02, according to the cross-action, was owed to the appellee by the appellant because of the cross-action on file. Appellant grossly took issue with the appellee. The trial court granted the motion.

The judgment of the trial court instructed the clerk of the court to pay to appellee the sum of $1,307.52 that had been conditionally tendered by the appellant into the registry of the court “wholly without prejudice to the rights, position and contentions of any party to this suit”. Appellant excepted and gave notice of appeal. It brings forward one point of error.

After the record was filed in the Court of Civil Appeals, the appellee filed a motion to dismiss the appeal, contending that the order appealed from was interlocutory and was not a final judgment within the meanings of Art. 2249, 2250 and 2251, Vernon’s Ann.Tex.Civ.St., and Rule 385.

Appellant by its point says the court erred in entering the order directing the money to be delivered to the appellee wholly without prejudice to the rights, position and contentions of any party to this suit, because the money had been conditionally tendered in full and final payment of all the tax liability for the year 1962, and as a necessary prerequisite to the asserting of the affirmative relief prayed for in appellant’s original petition.

There is no case direct in point in Texas as to whether or not the judgment entered by the trial court is a final judgment from which an appeal can be taken. Because of the facts alleged in the pleadings it has been decided that such is a final judgment. The money had been conditionally tendered into the registry of the court for the full and final payment of all the taxes due by appellant to the school district for the year 1962. The title to the money deposited to the registry of the court did not immediately pass to the appellee because of the fact that appellant did seek affirmative relief. 52 Am. Jur.’ 248, Sec'. 47. In the event the appellee is permitted to withdraw the money, under the pleadings, it cannot claim any more money for the year 1962. 86 C.J.S. Tender § 64b.

The case most nearly in point by the Texas courts is McCreary v. Robinson, 92 Tex. 408, 49 S.W. 212, answering a certified question. The case, on its merits, concerned the construction of a Will. In the Will, Robinson left a life estate and a portion of his property to his wife, and the remainder of the property, including the remainder of such estate, to one Sallie McCreary. The devise to Mrs. McCreary, however, provided that during the life of John Robinson the rents and profits from certain of the lands devised were to be used to maintain John Robinson with “the comforts and necessities of life”. John Robinson filed suit alleging there was a large sum of money being held by the executor to which he was entitled by the Will. He also requested that during the pendency of the suit he be allowed certain sums from these monies as temporary support because of his circumstances. The court entered an order allowing him a certain sum as temporary support pending the final outcome of the litigation. An appeal was taken from the order, and the Court of Civil Appeals certified the question to the Supreme Court: “Is the judgment appealed from such a final judgment as will support an appeal to this court?” The Supreme Court answered in the affirmative. The Supreme Court later reversed the judgment of the Court of Civil Appeals in McCreary v. Robinson, 94 Tex. 221, 59 S.W. 536, and in the last paragraph of the opinion had this to say:

“We are urged to make a final disposition of the case, but this cannot be ■done without a finding of all the facts. In view of another trial, we suggest that it seems to us best that the case, if tried by a jury, should be submitted upon such special issues as will enable them to find by their verdict the specific facts and circumstances by which the court must be guided in construing the will. For the errors pointed out, the judgment is reversed and the cause remanded.”

Other cases of similar holdings are: Milan v. Hill et al., 29 Tex.Civ.App., 573, 69 S.W. 447, N.W.H.: Sawyer v. Ellis et al., 36 Ariz. 419, 286 P. 189. The motion to dismiss the appeal is overruled.

From the above holdings it seems unnecessary to discuss the above point of error. Appellant did seek affirmative relief and conditionally tendered the money into court as a precedent to the end it sought. The money remains the property of the appellant until the final outcome of the lawsuit. 55 T.J.2d 230, Sec. 19; City of Rosebud v. Vitek, Tex.Civ.App., 210 S.W. 728, dism. w. o. j.; Texarkana & Ft. S. Ry. Co. v. Brinkman, Tex.Civ.App., 288 S.W. 852, affmd., Tex.Com.App., 292 S.W. 860; Republic Ins. Co. v. Highland Park Independent School District, Tex.Civ.App., 123 S.W. 2d 784, dism. w. o. j. The point of error is sustained.

The judgment of the trial court is reversed -and .the cause is remanded for trial upon its merits.


author: COLEMAN, Justice.

text:
    Jimmy LEWIS, Appellant, v. ADA EMPLOYEES CREDIT UNION, Appellee.
    No. 14402.
    Court of Civil Appeals of Texas. Houston.
    Oct. 22, 1964.
    Rehearing Denied Nov. 19, 1964.

      Harry Burns, Houston, for appellant.
    Caldwell & Hurst, John H. Caldwell, Ernest C. Hurst, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from a summary judgment for the plaintiff in a suit on a promissory note.

Both parties filed motions for summary judgment. From appellant’s sworn pleading and affidavit, it appears that on or about September 28, 1959, K. S. Adams, Jr., was the owner of the corporate stock of the Houston Headliners Club, which was the employer of appellant, Jimmy Lewis. Lewis was indebted to the Club in the sum of $1,000.00 and Adams agreed to advance him the further sum of $5,000.00, the total amount to be repaid by deductions from Lewis’ monthly salary. Adams thereupon gave Lewis a check for $5,000.00 on the account of the Houston Headliners Club dated September 28, 1959. On or about November 15, 1959, at the request of Adams, Lewis went to see one of Adams’ assistants “to sign some papers in connection with the $6,000.00 loan from Houston Headliners Club.” Lewis signed certain legal instruments at the office of the Ada Employees Credit Union, including the note made the basis of this suit. The principal balance due at the time of the trial was $1,271.55.

Appellee filed, with its motion for summary judgment, the affidavit of its attorney to the effect that the statements, facts and matters contained in the original petition and motion for summary judgment of the plaintiff were, to his personal knowledge, true and correct. The pertinent facts therein contained were a description of the note, ownership thereof, the balance due and unpaid, the interest due, and the amount of attorney’s fees provided in the note. Neither the affidavit nor the pleadings of appellee state that appellee paid any money to Lewis, Adams or the Houston Headliners Club as consideration for the note.

Appellant filed sworn pleas of no consideration, failure of consideration, and partial failure of consideration. In addition he filed with his motion for summary judgment his affidavit containing the following statement:

“3. Neither at the time of the signing of said note nor at any other time did I receive any money from plaintiff. I did not receive one cent or any other type of benefit from plaintiff for the signing of said note.”

Sections 24 and 25 of Article 5933, Vernon’s Ann.Tex.St., provide:

“Sec. 24. Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.
“Sec. 25. Value is any consideration sufficient to support a simple contract. An antecedent or pre-existing debt constitutes value; and is deemed such whether the instrument is payable on demand or at a future time.”

Appellant’s sole point of error is that “The trial court erred in rendering summary judgment against Appellant because there was a complete want of consideration for the signing of the note in question by Appellant.”

Appellant does not deny under oath any material element of appellee’s cause of action as alleged in its petition. He has chosen to base his defense on certain affirmative defenses, and has restricted his attack on the judgment rendered to the “no consideration” point. The summary judgment was properly granted unless a material fact issue is raised by the undisputed testimony that appellant received no benefit from appellee as consideration for the note. The burden of proof on the issue of “no consideration” rested on appellant. By virtue of the quoted statute a detriment to appellee would constitute adequate consideration. There is no testimony raising an issue of fact as: to the existence of such consideration in this case.' Appellant’s affidavit and his sworn pleading are insufficient as a matter of law to raise the defense of no consideration because the facts stated therein taken as being correct would not require a judgment in his favor. General Motors Acceptance Corporation v. Musick, Tex.Sup., 379 S.W.2d 297; Mason v. Mid-Continent Supply Company, Tex.Civ.App., 374 S.W.2d 922, ref., n. r. e.; Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, writ ref.; Statham v. City of Tyler, Tex.Civ.App., 257 S.W.2d 742, ref., n. r. e.

The judgment of the trial court is affirmed.


text:
    Jim HAYWOOD, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
    No. 14421.
    Court of Civil Appeals of Texas. Houston.
    Nov. 5, 1964.
    Barber & Seale, Sid S. Stover, Jasper, for appellant.
    Royston, Rayzor & Cook, Richard D, Davis, Bryan F. Williams, Jr., Galveston, for appellee.
   COLEMAN, Justice.

This is a workmen’s compensation case. Appellant primarily relies for reversal on his contention that the trial court gave undue and improper emphasis to the fact that appellant returned to work by placing the date on which he admittedly returned to work in several of the special issues submitted to the jury.

Before considering this and other claimed errors, it is proper to consider whether the trial court could have entered a judgment other than the one rendered.

The jury answered, “It is, do solely”, to Special Issue No. Nine, reading:

“Do you find from a preponderance of the evidence that the Plaintiff’s incapacity, if any, is not due solely to other injuries or bodily infirmities?
“Answer ‘It is not due solely’ or ‘It is due solely.’ ”

The Supreme Court of Texas, in the case of Cloud v. Zellers, 158 Tex. 253, 309 S.W. 2d 806, held:

“Plaintiff objected to the reading of the pleading and the introduction of the testimony above mentioned on the ground that it invaded the province of the jury, constituted opinions and conclusions, injected into the case the standard of care of the official rather than that of the ordinary prudent person, and was highly prejudicial to the plaintiff. The Court of Civil Appeals held that the trial court erred in overruling the objections and further held that the error was so prejudicial to the rights of the plaintiff as to require a retrial.
“We agree with the holding of the Court of Civil Appeals that it was error to permit the reading of the pleading and to admit the testimony of Cloud and Farias. See cases cited in the opinion of the Court of Civil Appeals, 302 S.W.2d [467] 469-470. Even so, the reversal of the trial court’s judgment was not justified unless an examination of the record as a whole leads to the conviction that the error was calculated to cause and probably did cause the jury to give the answers it did give to all issues which will support the judgment. Rules 434 and 503, Texas Rules of Civil Procedure, (emphasis added)
* * *
“The Court of Civil Appeals held that the form of the issue amounted to a comment on the weight of the evidence and that' the matter inquired about was purely evidentiary. ■ Since the judgment may rest on other findings of contributory negligence any error in the form of Issue 32 is immaterial.” (emphasis added)'

In Commercial .Standard. Ins. Co. v. Noack, Tex.Com.App., 62 S.W.2d 72, the court said:

“In a case of this kind the burden is on the claimant to establish, by competent evidence, his right to compensation. Also it was the right of the insurance company to have the question as to whether Noack was suffering from heart trouble, and whether his injuries, if any, resulted solely therefrom, directly and affirmatively submitted to the jury, if the pleadings and the evidence raised such question. Dallas Ry. & Term. Co. v. Garrison (Tex.Com.App.) 45 S.W.(2d) 183 (opinion approved); Armour & Co. v. Tomlin (Tex.Com.App.) 60 S.W. (2d) 204. The insurance company filed a general denial. This was a sufficient pleading on its part.”

In Traders & General Ins. Co. v. Watson, Tex.Civ.App., 131 S.W.2d 1103, the court, citing numerous authorities, said:

“If the pre-existing disease is the sole cause of an employee’s incapacity, then incapacity does not result from an injury and the employee is not entitled to any compensation.”

The jury found in response to Special Issue No. One that the injury sustained by appellant was not the producing cause of any incapacity to work after June 26, 1961. Whether or not the court gave undue emphasis to the date appellant returned to work by the inclusion of that date in this and other issues predicated thereon, it is difficult to see how even improper emphasis on that fact could have influenced the jury in determining that appellant’s incapacity to work was caused solely by pre-existing injuries. The answer to Special Issue No. One is not necessarily a finding that there was no incapacity to work and, therefore, not inconsistent with the answer to Special Issue No. Nine. No attack has been levied against the answer to Issue No. Nine on any ground. The error, if any, in the manner of submitting Special Issue No. One would constitute harmless error under Rule 434, Texas Rules of Civil Procedure.

Appellant assigns as error the failure of the court to sustain his challenge for cause of a member of the jury panel and contends that he was thereby forced to accept an objectionable juror. It is contended that the juror challenged was disqualified by reason of the fact that he was insured by the appellee. The objectionable juror which appellant contends he was forced to accept was named and valid reason for objection stated. However these reasons are not proven and preserved by a bill of exception and do not otherwise appear in the record. Prior to the beginning of the jury deliberations this juror was excused from the jury by agreement. No error is presented by this assignment. Bennett v. Jackson, Tex.Civ.App., 172 S.W.2d 395, ref., w. m.; Parker v. Traders and General Insurance Company, Tex.Civ.App., 366 S.W.2d 107, judgment mod., Tex., 375 S.W.2d 714; Sellers v. Galveston, H. & S. A. Ry. Co., Tex.Civ.App., 208 S.W. 397, error ref.

Appellant contends that his disability is caused by an injury to his low back. On deposition he denied that he had been previously injured, but on trial he admitted a previous injury when a bag of fuel fell on him. In answer to the question, “What did it hurt ?” he stated: “It hurt me up between my shoulders.” He then testified that he was off work six or eight months and his back got all right. He testified that this injury happened in 1946, but later said he didn’t remember what year it was.

Appellee tendered into evidence appellant’s petition in this prior law suit. Appellant made this objection:

“Comes now the Plaintiff in the above entitled and numbered cause and objects to the introduction of said Petition referred to above on the grounds that it is immaterial and highly prejudicial; that subsection IV of said Petition pertains mainly to Plaintiff’s claim of total and permanent disability and injury, which is merely a prediction; that Plaintiff has testified at the trial that he was injured when fuel fell on his back, as stated in said Petition.
“Plaintiff objects to the reading of the claim of permanent and total disability on the grounds that no inconsistency has been established between this and Plaintiff’s testimony, the only possible inconsistency which has been established being that of the date of the injury. Plaintiff has no objection to the reading of the date of the injury. Plaintiff also has no objection to evidence as to the injury itself.
“Plaintiff objects to the introduction of the documents as a whole on the grounds that they are prejudicial and immaterial and that no basis of inconsistencies has been established thereby making said Petition admissible. Plaintiff contends that the introduction of the documents is a lawsuit in itself prejudicial in this case. Plaintiff would have no objection to the introduction of evidence as to when the accident occurred, the injury.
“I would like at this time, without making another objection, to have wherever I say ‘prejudicial and immaterial’ also read ‘hearsay.’ ”

The court made the following ruling:

“I will permit you to introduce that part of section IV down through subsection (5). The court overrules the Plaintiff’s objections and exceptions to the entire offer and will permit Counsel to introduce into evidence that portion of the Petition consisting of subparagraph (a) of paragraph IV through subparagraph (5) only.”

No further or additional objections were made.

The exhibit admitted reads:

DEFENDANT’S EXHIBIT NO. 7
“(a) That plaintiff sustained accidental injuries to his body while in the course of his employment on or about February 8, 1953, working for Temple Lumber Company at Pineland, Sabine County, Texas, doing work known as punching fuel. Early in the morning of this day about 2:30 fuel weighing approximately several hundred pounds fell on plaintiff from about 12 feet above and striking plaintiff with great force, knocking him down and covering him over. The heavy blow of the fuel, together with the fall, caused plaintiff serious and permanent injury to his body and thereby causing injury to the muscles, tissues, ligaments, sinews, nerves, tendons and bony structure of his back, resulting in permanent and total disability, to-wit:
“(1) Severe lumbo-sacral strain;
“(2) Straightening of the usual anterior lumbar curve;
“(3) Marginal lipping of the adjacent margins of the bodies of the 2nd and 3rd, 3rd and 4th lumbar vertebrae chiefly anteriorly;
“(4) Narrowing of the interverte-bral disc space between the body of the last lumbar vertebra and the top of the sacrum;
“(5) Herniated disc with pressure on the nerve roots between L-5 and S-l.”

The trial court did not err in admitting this portion of the petition. The statements contained therein were clearly inconsistent with appellant’s contention that his prior injury concerned his back in the shoulder area. The objection was made to the document as a whole and no request was made that the allegation of total and permanent disability be eliminated. The document admitted was relevant to a material issue and was inconsistent with the position taken at the trial by appellant. Hartford Accident and Indemnity Company v. McCardell, Tex.Sup., 369 S.W.2d 331; St. Paul Fire & Marine Insurance Company v. Murphree, 163 Tex. 534, 357 S.W.2d 744.

The judgment of the trial court is affirmed.


author: PHILLIPS, Justice.

text:
    E. L. PARKER, Appellant, v. The STATE of Texas et al., Appellees.
    No. 11260.
    Court of Civil Appeals of Texas. Austin.
    Nov. 4, 1964.
    Rehearing Denied Nov. 18, 1964.

      Felts & Robinson, Austin, for appellant.
    Waggoner Carr, Atty. Gen., Charles B. Swanner, Asst. Atty. Gen., Austin, for ap-pellees.
   PHILLIPS, Justice.

To state this case we quote partially from appellant’s brief:

“This is an appeal from the grant of a permanent injunction arising out of the first proceeding brought by the Attorney General under the Texas Regulatory Loan Act passed by the Legislature in 1963 (Senate Bill No. 15, Acts. 58 Leg.Reg.Sess.1963.) [Footnote ]
“The Appellant, E. L. Parker, was the Defendand in the trial court and the Appellees, The State of Texas and Francis A Miskell, Texas Regulatory Loan Commissioner, were Plaintiffs in the trial court. The parties will be referred to as they were in the trial court.
“The Defendant Parker owns and operates a retail liquor store on Airport Boulevard in Austin, Texas. He does not have any license from the Loan Commission to engage in the loan business. He does loan money. The Loan Commissioner learned of this activity and filed suit against him. On the morning Parker was - served with the citation, the deputy sheriff serving the citation was accompanied by two investigators employed by the Loan Commission and the Receiver appointed by the Court. Immediately upon being served by the deputy, the two Commission Investigators demanded to inspect Parker’s ‘books and records.’ This demand was made even before Parker was given the opportunity to read the pleadings.
“Parker, after reading the pleadings and in compliance with the Court’s order, turned over to the Investigators his ‘books and records,’ which consisted of promissory notes, checks and small 3X5 index cards containing the names of the borrowers, a record of their payment and other memoranda concerning the borrowers, such as purchases of merchandise and liquor which they had made from Parker. The Investigators took these ‘books and records’ and made a record of the borrowers’ names and other information found in these ‘books and records.’ The Investigators then turned over the promissory notes and checks to the Receiver returning the cards to Parker.
“The Plaintiffs, alleging usurious conduct against the Defendant, filed suit seeking a temporary restraining order, the appointment of a temporary receiver, a temporary injunction and a permanent injunction. The trial court granted the restraining order and the appointment of a receiver without notice or hearing and set the temporary injunction for hearing. Upon the day set for hearing the temporary injunction, it was the agreement of the parties with the approval of the trial judge to proceed to trial on the merits and hearing on the permanent injunction.
“Before hearing, the Defendant presented special exceptions, two of which (Exceptions 4 and 5) excepted to the laws relied upon by Plaintiffs as being unconstitutional as to the Defendant. These exceptions were taken under advisement by the trial court. After hearing, the trial court overruled all of Defendant’s exceptions and granted judgment for the Plaintiffs enjoining the Defendant from collecting any interest on loans made by him and directed him to pay the costs, including $150.00 as fee for the temporary receiver.”

In its findings of fact and conclusions of law, the court found that Parker was violating the law by lending money with cash advances of $1500 or less at usurious interest; that he was advertising himself as being in the loan business; that he had made as many as three usurious loans within the past six months; that he was not a licensee under the Texas Regulatory Loan Act; that he was not exempt from the requirements of the law; and, that his loans were not exempt transactions from the law.

We affirm the judgment of the trial court.

Appellant Parker is before this Court on one point of error in that the trial court erred in concluding that the act was constitutional under the facts of this case.

Appellant contends that Sections 12(b), (c) and (g) of Article 6165b, called the Texas Regulatory Loan Act, are in conflict with Article 1, Sections 9 and 10, of the Texas Constitution, Vernon’s Amn.St. which protect persons from unreasonable search and seizures and provide that a person shall not be compelled to give evidence against himself in criminal prosecutions.

Section 12(b) of the Act in question prescribes the method of the Commissioner or his authorized representatives may investigate the books, accounts, papers, etc. of any licensee “or other person who the commissioner has reasonable cause to believe is violating any provision of this Act whether or not such person shall claim to be within the authority or scope of this Act. For the purposes of this subsection any person who advertises for, solicits or holds himself out as willing to make loans with cash advances in the amount or the value of One Thousand Five Hundred Dollars ($1,500-) or less, shall be presumed to be engaged in the business described in Section 5 of this Act.”

Section (c) of the Act authorizes the Commissioner in the course of any investigation, examination or hearing looking to the enforcement of any provision of the Act, by subpoena or summons directed to any peace officer within the State, to compel the production of books and records and the attendance and testimony of witnesses.

Section (g) authorizes the Commissioner having “reasonable cause to believe that any licensee or any other person is violating any provision of this Act” to seek an injunction in the proper court or the relation of the Attorney General and further authorize the appointment of a receiver to impound the books and records of the suspected violator in the manner followed in the case at bar.

We do not believe that it would add to this opinion to discuss in detail the authority cited by appellant in behalf of his contention that Parker’s records were illegally seized inasmuch as we are in agreement that Art. 1, Sec. 9, of the Texas Constitution does prohibit unreasonable search and seizures of the private papers of an individual. We believe, however, that this aspect of the case is controlled by our holding in Culver v. Smith, Tex.Civ.App., 74 S. W.2d 754, error refused, which allowed such a search and seizure where it involves a business that is subject to regulation in the public interest and subject to the regulatory powers of an administrative agency delegated to regulate such business. Such records by their very nature become public as distinguished from those entirely private.

Culver v. Smith, supra, involved the constitutionality of a statute empowering the Railroad Commission to investigate the petroleum industry and authorizing the Commission to require certain reports, make inspections and examine records. The same argument as to illegal search and seizure was made there as here, however, this Court in an exhaustive opinion stated that “ * * * the provisions of the act for examining and inspecting powers are legal, because they relate to matters and things which may be legitimately left to administrative determination and discretion, and are enabling powers in aid of the broader administrative powers exercised by the Commission in the enforcement of the Conservation Laws.”

This Court then quoted Mr. Justice Hughes in Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 as follows:

“The principle (lack of immunity) applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation, and the enforcement of restrictions validly established. There the privilege which exists as to private papers cannot be maintained.”

While Parker was not a licensee, the act is broad enough to apply to anyone performing within its scope. The Commissioner was interested solely in those records pertaining to the loan business, records which he had a legal right to inspect any time he had reason to believe that a violation of the law had occurred.

Nor do we believe that we can reverse this case upon appellant’s theory that his constitutional protection against self incrimination guaranteed him by Article 1, Section 10, of the Texas Constitution has been violated. The privilege of self immunity is a privilege of the witness only. Ingersol v. McWillie, 87 Tex. 647, 30 S.W. 869. In Fleishman v. State, Tex.Civ.App., 91 S.W.2d 493, defendant’s counsel attempted to invoke the privilege where defendant’s books and records were entered into evidence against him in a proceeding to recover penalties for violation of an order of - the Railroad Commission. Here the court affirmed the judgment of the trial court that admitted the questioned records. In Texas the privilege must be invoked by the accused personally and an attempt by his lawyer to do so is insufficient. See Annotation in 51 A.L.R.2d, p. 1178 n. 4.

Meredith v. State, 73 Tex.Cr.R. 147, 164 S.W. 1019, relied upon by appellant is not in point as the accused in that case did not assert the privilege when he was called upon to produce the note in question but attempted to do so when secondary evidence was introduced to describe the note. The secondary evidence was admitted and the appellate court upheld the forgery conviction.

Since no statement of facts or bills of exception are before this Court we have no way of knowing if or how the privilege was exercised and must presume that the Court correctly ruled on the evidence admitted.

The judgment of the trial court is affirmed.

Affirmed.

      . Article 6165b, Vernon's Texas Civil Statutes.


author: WILSON, Justice

text:
    James E. FAULKNER, Appellant, v. Eugene JOHNSON et ux., Appellees.
    No. 4265.
    Court of Civil Appeals of Texas. Waco.
    Oct. 15, 1964.
    James E. Faulkner, Coldspring, pro se.
    Rachel Johnson, Pasadena, for appellee.
   WILSON, Justice

The appeal is from a decree ordering adoption of appellant’s children by his divorced wife, (the children’s mother), and her present husband.

One of appellant’s points asserts that absent his written consent to adoption, in the absence of pleading and proof of his abandonment and desertion, or that the children were dependent and neglected, or that parental rights had been ordered terminated, adoption was not authorized under Sec. 6, Art. 46a, Vernon’s Ann.Civ.St. The statute provides an additional exception to adoption without the written consent of the parents: “if such parent or parents shall have not contributed substantially to the support of such child” during a two-year period “commensurate with his financial ability”. This was the pleaded basis of the decree. The contention is untenable.

Appellant then says, as we understand his points, that the undisputed evidence established as a matter of law that he did contribute substantially to the support of the children commensurate with his financial ability so as to conclusively negate existence of the statutory exception. His argument is that the evidence shows without dispute that he contributed more than was required by a 1957 divorce decree which fixed the monthly child support payments he was to make. We have examined the entire record. It clearly does not support the contention; it does sustain the determination of the trial court that the statutory exception exists

Another point challenges the overruling of appellants demand for a trial by jury. The issue of fact as to whether the statutory exception to the consent requirement existed was tried and determined without a jury at appellant’s instance in 1962 on his plea in abatement. He did not then request a jury trial, and waived trial by jury on that issue. The adoption statute, moreover, “makes it the duty of the trial court or judge, as distinguished from a jury, to grant or deny a petition for adoption.” Hickman v. Smith, Tex.Civ.App., 238 S.W.2d 838, writ refused. The point is overruled.

Other points have been considered and are overruled. Affirmed.


author: TIREY, Justice. WILSON, Justice

text:
    W. A. HOWELL, Appellant, v. LaFerne SANDERS, Appellee.
    No. 4288.
    Court of Civil Appeals of Texas. Waco.
    Oct. 22, 1964.
    Rehearing Denied Nov. 19, 1964.
    Jones, Boyd, Westbrook & Lovelace, Waco, Holloway Martin, Jr., and Norton Fox, Groesbeck, for appellant.
    ■ Kacir, Lesikar & Kacir, Temple, Ñaman, Howell, Smith & Chase, Waco, Bradley & Geren, Carl Cannon, Groesbeck, for appel-lee.
   TIREY, Justice.

W. A. Howell filed this action against Mrs. LaFerne Sanders to recover damages for injuries which he alleged to have been sustained to his person and to his International one-half ton pickup truck. He went to trial on his original petition and his answer to defendant’s cross-action. He alleged substantially that on the 18th day of March, 1963, he was operating his truck on a street in Groesbeck, Texas, and that in the process of leaving a house located on Rusk Street known as Old Thornton Highway he stopped while still in the entrance of a driveway which gave ample room on the street for automobiles moving in opposite directions to pass in safety; that he was at a complete stop in the driveway when suddenly the automobile of defendant struck his truck from the rear, in which occurrence he received personal injuries and certain damages to his truck. He alleged that the collision resulted from the negligence of the defendant in one or more of eight different particulars. Among these were failing to maintain a proper lookout; failing to make proper application of her brakes, and failing to bring her car to a stop before it struck the rear of his truck; in failing to turn her car to the left in order to avoid striking the rear of his truck. In his 7th particular he alleged :

“In operating the 1960 Chevrolet automobile at a rate of speed in excess of that at which it would have been operated by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances.”

Mrs. Sanders went to trial on her first amended original answer and cross-action which contained general and special denials to all the allegations in the plaintiff’s petition. In her cross-action she alleged that Howell was guilty of negligence in four particulars and that each was a proximate cause of the injuries and damages sustained by her; that plaintiff failed to keep a proper lookout; failed to yield the right-of-way, and that Howell started his vehicle from a standing and parked position without first determining that such movement could be made with safety, in violation of Art. 6701d, Sec. 67, Vernon’s Ann.Tex.Civ. St.; and that Howell, after having started his car in reverse, failed to stop before colliding with plaintiff’s car. The jury found that Mrs. Sanders did not fail to keep a proper lookout; that the failure of Mrs. Sanders to apply her brakes was not negligence and was not a proximate cause of the accident, and that the failure of Mrs. Sanders to turn her automobile to the left immediately prior to the collision was not negligence and was not a proximate cause of the accident, and fixed her damages for personal injuries at $5,000.00, and medical expense of $64.00, and found the repair bill to her car to be $527.70, and further found that Mrs. Sanders had suffered the further loss of $272.30 for damages to heir' car and fixed her total damage at $5864.00'., The court overruled plaintiff’s motion for judgment non obstante veredicto and granted judgment for Mrs. Sanders on the verdict and entered a take-nothing judgment against plaintiff Howell.

The Court overruled plaintiff’s amended motion for new trial and he perfected his appeal to this court.

Appellant’s Point one (1) is:

“The trial court erred in refusing to submit appellant’s requested special issues relating to appellee driving her automobile at an excessive rate of speed immediately prior to the collision in question.”

At the close of the evidence plaintiff presented his requested Issues Nos. 1 and 2 and, omitting the formal parts, they are z

“1. Do you find from a preponderance of the evidence, if any, that at the-time and on the occasion in question, and immediately prior to the collision in question, LaFerne Sanders drove her 1960 Chevrolet automobile at a greater rate of speed than a person of ordinary prudence would have driven it under the same or similar circumstances ?
Answer ‘she did’ or ‘she did not’.
Answer:-.
If you have answered the foregoing special issue ‘she did’ then you will answer the following special issue, otherwise you need not answer the following special issue.
“2. Do you find from a preponderance of the evidence, if any, that ' the act of LaFeme Sanders in driving her automobile at an excessive rate of speed, if you have so found, was a proximate cause of the collision in question?
Answer ‘it was’ or ‘it was not’.
Answer: -”

Mrs. Sanders testified to the effect that the accident happened in the edge of the city limits of Groesbeck; that she was driving in a northerly direction on said street at about 10:30 A.M., and that she first saw appellant’s pickup “two blocks three or four houses up” from the point of the accident, and at that time she was driving 20 to 25 miles per hour; that she was looking in the direction in which she was driving, and that she did not see the plaintiff backing his truck into the street, and did not know that he was doing so until he hit her the first time “on the right fender”. * * * “And it bounced off and came back into me on the right door, * * That the second impact knocked her “cater-cornered” across the street. As we understand her testimony she did not apply her brakes or slow the speed of her car from the time she first saw plaintiff’s car sitting in the driveway until the time that the first impact occurred; nor did she pull her car to the left The street was unpaved and it was described as being rough. The witness Elias Howell testified to the effect that he heard Mrs. Sanders’ car coming down the street and that he saw the collision, and that the force of the impact picked the truck up so that both hind wheels cleared the ground, and that the impact pushed the truck further down the street some several feet. Howell testified to the effect that he looked both ways before starting his truck and did not see any car approaching.

In appellant’s brief we find the following státement:

“We feel that the foregoing enumerated testimony is sufficient to establish that there was some evidence from which the jury could have determined that Mrs. Sanders was driving at a greater rate of speed than she should have at the time the accident occurred. Presumably, therefore, the trial court only refused to grant this issue on the basis that it was included within one of the other issues that he had submitted.
“It is well settled that a party is entitled to the unconditional submission of every ground of recovery upon which he bases his claim or defense. In negligence cases this has been held to include the allegations relating to various acts of negligence, and it has just recently been held again that a global submission of various acts of negligence in one broad issue is improper.” Citing Pitts v. Barclay, Tex.Civ.App., 377 S.W.2d 750.

We think appellant’s contention is answered adversely to him by our Supreme Court in Kainer v. Walker, Tex., 377 S.W.2d 613. The opinion of the Supreme Court in the Kainer case is dealing with a situation that is very similar in vital respects to the case at bar, save and except that we are of the view that the evidence here is insufficient to tender an issue of excessive speed. See Sec. 166, Art. 6701d, V.A.T.S., (a), (1) and (b). We are of the opinion that the evidence is sufficient to tender the issue that Mrs. Sanders failed to keep a proper lookout, and that issue was submitted to the jury, and she was acquitted of such failure. We think the opinion of our Supreme Court in the Kainer case is quite clear and comprehensive, and we feel that further comment thereon would be of no avail. Accordingly, Point 1 is overruled.

We have carefully read the statement of facts, and we are of the view that the evidence is ample to support the jury findings as to the extent of injuries and amount of damages sustained to Mrs. Sanders’ person and to her car, and we are of the further view that the pleadings are sufficient to support her claim for damages to herself and to her car and, therefore, we overrule Points 2, 3, 4 and 5.

We are also of the view that the answers of the jury are not against the great weight and preponderance of the evidence and, therefore, we overrule Point 6.

We are of the view that the evidence does not show that Mrs. Sanders was guilty of various acts of negligence which proximately caused the collision as a matter of law and, therefore, we overrule points 7, 8, 9 and 10. See Liberty Film Lines, Inc., v. Porter, 136 Tex. 49, 146 S.W.2d 982, Pt. p. 984, (Com.App., opinion adopted); Texas Power & Light Company v. Jacobs, Tex.Civ.App., 323 S.W.2d 483, n. r. e., (cases cited under points 1 to 5, 6-11); Volkmer v. Curlee, Tex.Civ.App., 261 S.W.2d 870, n. r. e. Pt. 1.

Points 11 and 12 are to the effect that the court erred in overruling plaintiff’s objection to special issue 11, (a) for the reason that such issue was too global and speculative; (b) that the instruction given in connection with such special issue was too global. We overrule each of these contentions for reasons hereinafter briefly stated. Sec. 67 of Art. 6701d, aforesaid, provides:

“No person shall start a vehicle which is stopped, standing, or parked unless and until such movement can be made with safety.”

Mrs. Sanders in her cross-action specially alleged that plaintiff was guilty of negligence in “that the said W. A. Howell started his vehicle from a standing and parked position without first determining that such movement could be made with safety, in violation of Vernon’s Annotated Civil Statutes of the State of Texas, Art. 6701d, Section 67; ”. We have previously stated that Mrs. Sanders testified to the effect that she saw plaintiff’s truck parked in the driveway and that she was looking in a northerly direction in which she was traveling on the street and did not see the truck again until it backed into the right front side of her car, and then the driver pulled forward and put his truck in reverse and hit her the second time on the' right front door and knocked her across the street.

“Special Issue No. 11:
“Do you find from a preponderance of the evidence, if any, that the plaintiff and cross-defendant, W. A. Howell, at the time and on the occasion in question failed to yield the right-of-way to the vehicle driven by LaFerne Sanders?
Answer: ‘He failed’ or ‘He did not fail’. Answer: -.
In connection with the foregoing issue, you are instructed that the driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to all vehicles approaching on said highway.”

Section 74 of the above article provides:

“The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to all vehicles approaching on said highway.”

It is true that Mrs. Sanders did not specially plead that the plaintiff violated Section 74 above quoted. However, in paragraph 1 of her cross-action she alleged substantially that as she was going in a northerly direction plaintiff Howell backed out of the private entrance and into the right side of her car as she was passing the private entrance, and that after, the first impact Howell pulled up a few feet and threw his truck into reverse and backed into her car a second time; that Howell did not give any warning or signal whatever of his intention to back into the street. In view of the provisions of Sec. 67 and Sec. 74, above quoted, and the evidence tendered thereon, the instruction given by the court to special issue 11 is not too global, and does not constitute reversible error. Points 11 and 12 are overruled. See Kainer v. Walker, supra.

Appellant in his brief says:

“By their answer to special issues Nos. 9, 10, 11 and 12 the jury evidenced their conclusion that appellant Howell backed into the side of appellee Sanders. These issues and the answers thereto are entirely unsupported, improper and insufficient to support a judgment.
“Special Issues Nos. 9 and 10 relate to the lookout kept by W. A. Howell. According to Howell, he kept a proper lookout. He testified that he looked before he backed out into the street, he saw ho car approaching, and that as he pulled forward and stopped, he saw no car approaching. His testimony will only support a finding that he kept a proper lookout. The jury did not have to believe W. A. Howell, but even if they disbelieved Howell’s testimony, if his testimony were the only evidence in the case, there would not be any evidence which would support the jury’s answer in the affirmative to Special Issue No. 9, that he failed to keep a proper lookout. Disbelief of an interested party’s testimony which is entirely consistent is no evidence of the exact opposite of the party’s testimony.”

Citing Latham v. Missouri-Kansas-Texas Railroad, Tex.Civ.App., 350 S.W.2d 379, w. ref., n. r. e.; Herrin Pet. Trans. Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422.

We have no quarrel with the authorities cited, but our view is that appellant overlooks the fact that Mrs. Sanders testified to the effect that the force of both impacts was against the right front of her car, and that as a result of the impacts her car was knocked across the street, and was left standing at what she described as “cater-comered” on the opposite side of the street from where she was hit. Moreover, the jury had before it the pictures exhibited with reference to Mrs. Sanders’’ car and the pickup, and it had the right to take into consideration all the facts and circumstances • surrounding the witnesses- and the marks of impact shown on Mrs. Sanders’ car, as well as those shown on the truck, and we think a jury question was thereby tendered for the jury to pass upon. We think it is true that the evidence tendered on the entire case would have supported a jury finding to the effect that Mrs. Sanders failed to keep a proper lookout,, but it acquitted her of so doing, and convicted Howell of failing to keep a proper-lookout, and found that such failure was-the proximate cause of the collision and resulting injuries to Mrs. Sanders and her car. We think the record as a whole is ample to support the jury’s finding in this, respect. But appellant further states in his brief:

“If the circumstantial evidence supports the conclusion that appellant Howell backed into the side of appellee Sanders, we would concede that there was sufficient circumstantial evidence to support a finding of failure to keep-a proper lookout on the part of Howell. However, we do not make such a concession. Further, the undisputed physical facts clearly establish that Mrs. Sanders’ car hit the Howell pickup.”

Miss Nona Pearl Hayes testified to the effect that she was an Official Court Reporter of the 77th District Court, and that she took the deposition of plaintiff, Howell, on the 10th day of May, 1963, which was after the date of the accident. She testified in part:

“Q. I will ask you on page 8 of the same deposition if this question was asked, beginning at line 5 through line 11, Question: * * Now, did you see Mrs. Sanders, LaFeme Sanders, defendant and cross plaintiff coming up the road ? I did not. Question: Did you look down the road? Answer: No, because I was sitting in the car, in the pickup. Are those the questions and answers given at that time?
“A. Yes, sir.
“Q. On page 9, line 5,1 will ask you if this question was asked and this answer given: And you didn’t look down the road and you didn’t see Mrs. Sanders coming? Answer : Didn’t see her and I didn’t hear her?
“A. Yes, sir.
“Q. Now, I will ask you, on page 11 beginning on line 5, I will ask you if this question asked and the answer given, is your endgate bent in? One place, yes. In the back? Yes, one place. And your bumper bent in? Answer: And a hole in the endgate. Question. Huh? Answer: And a hole in , the endgate. Was that the questions asked and the answers given by Mr. Howell?
“A. Yes, sir.”

J. O. Pelham testified to the effect that he was a mechanic and operator of a garage; that he went to pick up Mrs. Sanders’ car; that it was headed north and was on the extreme west side of the street; that the truck was “teed into the Chevrolet.”; that the rear end was into the Chevrolet and it was facing east; that he looked at the Chevrolet to see where it was hit; that it was hit directly over the right front wheel, and then on the right front door; that there was no evidence of any kind that the front of Mrs. Sanders’ car hit the pickup; that the Chevrolet was not caved in; that he looked under the hood and found that the air-conditioner was sprung down, and that the radiator was torn up; that the impact from the side twisted it around.

On Cross-examination he testified in part:

“Q. Mr. Pelham, the bumper on the Chevrolet car was damaged, wasn’t it ?
“A. Well, the wrap-around part, you know, that comes around the side of the fender had a — it was sprung a little bit.
******
“Q. Now, is it your belief then that the point of impact between the two cars was somewhat of an angle or in that fashion?
“A. Are you trying to ask me was the pickup backing and turning this way?
“Q. No, I am trying to ask you whether or not in your opinion, the damage was done to the Sanders’ Chevrolet car was done as a result of an impact more or less at an angle on this front fender?
“A. No, sir, I don’t think it was —I think the pickup come directly into it and she had already varied, she was trying to get to her extreme left.
"Q. All right. In other words,—
“A. And the impact just come into it, of course, she might have had—
“Q. Is it my understanding then of your evaluation that her car had turned to the left like this?
“A. She was definitely trying to get to the left.
“Q. Now, Mr. Pelham, in the event that Mrs. Sanders should testify that she had not turned her automobile to the left or to the right to any degree whatsoever, would that change your opinion ?
"A. No, Sir.”

We cannot agree with appellant’s contention that the circumstantial evidence and physical facts establish that Mrs. Sanders’ car hit the truck. The jury, after hearing the testimony and having in mind the positions of the car and the truck after they came to a rest as a result of the impact, and likewise having in mind the marks of impact on the car and the truck, and the resulting damage to each, and also having in mind that there were no marks of impact on the front of the car, save at the very tip of the wrap-around of the right bumper, and no damage to the front end of the car, was of the view that she did not run into Howell’s pickup, but on the contrary, believed that Mr. Howell backed his truck into her car, as she claimed. Again, we think that all the facts and circumstances are sufficient to support the jury’s view that Howell did not keep a proper lookout, and that this finding, and each of the other findings is not against the great weight and preponderance of the evidence.

We have carefully considered each of the other errors assigned and believing that no reversible error is shown, each of appellant’s points is overruled, and the judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

WILSON, Justice

(concurring) :

I concur in the holding that the complaints concerning the issues relating to failure to yield the right of way as preserved and presented do not reflect reversible error.