author: GRISSOM, Chief Justice.

text:
    TEXAS INFRA-RED RADIANT COMPANY, Inc., et al., Appellants, v. Margaret ERWIN, Appellee.
    No. 4011.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 12, 1965.
    Rehearing Denied Dec. 3, 1965.

      Seymour Lieberman, Houston, for appellants.
    Monroe R. Talley, Houston, for appellee.
   GRISSOM, Chief Justice.

Mrs. Margaret Erwin obtained a divorce from her husband, Cyral P. Erwin, and a division of their community property. That judgment decreed to the wife the beneficial interest in 10% of the stock standing on the books of the defendant corporations in the name of Mr. Erwin. 90% was vested in the husband, subject to a lien upon all the stock, with provision that all shares should be held in trust with the husband having the right to vote it. The judgment provided that upon fulfillment of all of Mr. Erwin’s obligations, 90% of the stock should be returned to him but that 10% should be retained by the trustee in accord with other provisions of the judgment. It then recited that Mrs. Erwin was the beneficial owner of 10% of all the stock turned ove.r by her husband to said trustee; that all income therefrom or proceeds of a sale thereof should be hers; that the proceeds of and income from her stock should be turned over to her in her absolute right. There was a provision that in the event of a trustee’s sale, at Mrs. Erwin’s election, her 10% of the stock might be sold by the trustee with the husband’s 90% but that the proceeds of said 10% “shall be hers absolutely.” The judgment recited that Mrs. Erwin should have no legal concern whether dividends were paid and that she was restricted to receipt of her part of any dividends declared or the proceeds of sale and that she should not have the right to question the propriety of management or have any other minority stockholders right to question management.

Mrs. Erwin sought a writ of mandamus ordering the defendant corporations, in which she had the beneficial ownership of 10% of the stock standing on their records in the name of her former husband or said trustee, to permit her to inspect their books. As statutory authority for such writ she cited Article 2.44 of the Texas Business Corporation Act, V.A.T.S., particularly Section C thereof. The trial court, upon proof by Mrs. Erwin of a proper purpose, in the exercise of its discretion, ordered said corporations to permit her to' examine their books. The defendants have appealed.

Appellants’ points are that the court erred in overruling their plea in abatement, thereby permitting inspection of the books by one who was not a stockholder “of record.” Appellants say that Article 2.44 of the Business Corporation Act requires that the owner of shares of stock in a corporation must be a shareholder “of record” to be entitled to inspect its books. They correctly say that all the stock standing in the name of Mr. Erwin was by the divorce decree order placed in the hands of a trustee, reserving to Mr, Erwin the right to vote said stock and limiting the use of said stock by Mrs. Erwin as heretofore pointed out.

Section A of Article, 2.44, provides that corporations shall keep correct and complete records, including a record of its shareholders, giving their names and addresses and the number of shares held by each. Section B provides that any person who has been a shareholder of record for six (6) months preceding his written demand, “stating the purpose thereof”, shall have the right to examine the corporation’s books. Section C provides that nothing therein shall impair the power of a court, “upon proof by a shareholder of a proper purpose”, regardless of the time he shall have been a shareholder of record, to compel production of ¿he books for his examination.

Appellants say that, by virtue of Article 2.44, the right of a stockholder to inspect a corporation’s books is limited to shareholders “of record”; that the right to examine the books is a statutory right and to enjoy it a stockholder must comply with the statute and be a shareholder “of record.”

In 18 C.J.S. Corporations § 502, p. 1176, the general rule is stated as follows:

“A stockholder has a right at common law to inspect and examine the books and records of the corporation at a proper time and place and for a proper purpose; and in many jurisdictions this right is further secured by statutory or constitutional provisions. Such statutes are salutary. They are not intended to abridge the stockholder’s common-law rights, but rather to enlarge and extend them by removing some of the common-law limitations.” (Emphasis is ours).

In Bishop’s Estate v. Antilles Enterprises, Inc., 3 Cir., 252 F.2d 498, 500, it was said that at common-law a stockholder was entitled to inspect the books at a proper time and place for a proper purpose and that statutory provisions securing to stockholders the right to inspect corporate records were to be regarded as supplemental to their common-law right to such inspection and not as a restriction thereon and that an order which did no more than grant to a stockholder her common-law right of inspection could not be attacked on the ground that it was broader than permitted by the statute. In In re Bush Terminal Company, 2 Cir., 78 F.2d 662, 663, it was held that, both under the statute of New York and under the common-law, a stockholder had the right to examine the records of a corporation, when examination was sought for a valid purpose. In Moore v. Rock Creek Oil Corporation (Tex.Com.App.), 59 S.W.2d 815, it was held that a stockholder was not required to allege and prove he was acting in good faith and with an honest purpose in seeking to enforce his then statutory right to inspect the corporation’s books and that he had made a prima facie case by establishing that he was a stockholder and the corporation had refused to permit inspection.

In Section B of Article 2.44 it is provided that a shareholder “of record” for six months preceding his written demand “stating the purpose thereof” shall have the right to examine the corporation’s books. Literally interpreted, Section B means that a stockholder “of record” for six months is entitled to inspect the books upon a demand “stating” the purpose thereof. Section B contains no requirement that such a shareholder of record must prove a “proper” purpose, merely that he must “state” his purpose. Section C provides that nothing in said article shall impair the power of a court upon “proof" — of “proper” purpose, regardless of the time such shareholder shall have been a shareholder “of record” and, regardless of the number of shares held by him, to compel production of the records for his examination.

In other words, although a stockholder did not possess the prerequisites to the right of examination stated in Section B, a court could permit examination upon “proof” of a “proper” purpose. He had that right at common-law. Section C was intended to make it clear that a shareholder’s right of examination under the common-law was not restricted by said statute. It is not contended that Mrs. Erwin desires to examine the records for an improper purpose. Section C provides that, although she is not a shareholder “of record”, the court may grant her the right of inspection upon “proof” of a “proper” purpose. She proved a proper purpose to the satisfaction of the trial court. The court did not abuse its discretion in granting the writ. The judgment is affirmed.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    William Thomas STOGNER, Appellant, v. Elizabeth Kay GEIS et al., Appellees.
    No. 184.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 2, 1965.
    Rehearing Denied Jan. 6, 1966.
    James C. Tubb, Akin, Vial, Hamilton, Koch & Tubb, Dallas, for appellant.
    Robert G. Bush, Slagle & Kennedy, Nance & Caston, Sherman, for appellees.
   SELLERS, Justice.

This is an appeal from an order overruling the Plea of Privilege of. Appellant Stogner to be sued in Dallas County where he lives in the suit filed against him in Grayson County by the heirs of Mr. and Mrs. Milton A. Geis who were killed in the collision which occurred on June 8, 1963, between the car operated by Stogner and the one operated by Mr. Geis and wife.

The controverting Plea of Privilege seeks to maintain venue in Grayson County under Exception 9a of Article 1995, Revised Civil Statutes of Texas.

To maintain venue in Grayson County, appellees were required to prove that negligent acts of Stogner were committed in Grayson County and that such negligence was the proximate cause of the fatal injuries of Mr. and Mrs. Geis.

There are a number of negligent acts alleged in the appellees’ petition, which petition is made a part of the controverting Plea of Privilege. The negligence that we think finds ample support in the evidence is that the appellant was guilty of negligence per se in that he drove his car across the center line of Highway 75 into the lane of the traffic going the opposite direction than that which Stogner was driving.

We are not without an eye witness to the accident. Professor Harkey, who teaches in S. M. U., relates that he was on his way from Sherman to Dallas, traveling south on Highway 75; that he first saw the appellant’s car approaching him from the south; that the car was on the east side of the highway in its proper lane of traffic and was some 300 yards distance from him; that at the time he first observed the car, it was apparently out of control but the car was straightened up and came on up to where the witness was almost opposite the Stogner car when Stogner suddenly crossed the center line of the highway, striking the rear end of the witness’s car and going some 27 feet before the Geis car was collided with. All of the collisions took place on the west side of Highway 75 in Gray-son County, thus placing Stogner in the wrong lane of traffic. This collision occurred about 9 o’clock at night. Professor Harkey said that the Stogner car was having some mechanical trouble when he first saw it; that sparks were coming from the car, but the car was kept on its side of the highway until just before the collision. It developed that an axle had broken on the Stogner car and a right rear wheel came off the Stogner car and there were skid marks on the pavement where Stogner applied the brakes just before his car crossed the center line of the highway. There was a lady riding with Mr. Stogner who was killed in the collision and Stogner himself was struck with such force that he does not now remember anything that happened at the time of the collision.

The physical facts above related were corroborated by a highway patrolman who arrived on the scene some 30 minutes after the collision occurred.

The trial court did not make finding of fact or conclusions of law; therefore, we must view the evidence in the most favorable light in support of the judgment of the trial court. James v. Drye, 159 Tex. 321, 320 S.W.2d 319.

In passing on the appellant’s points that there is no evidence, or, in the alternative, insufficient evidence to support certain implied findings of the trial court, we must consider only the evidence most favorable thereto and disregard entirely that which is to the contrary. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97.

While we have only set out a part of the evidence, we have reviewed the entire record and find that the evidence was sufficient to support the judgment of the trial court.

The evidence shows that the Geis car had been trailing Professor Harkey’s car for some time prior to the collision. Appellant Stogner says that the collision would not have occurred if the Geis car had not been driving too close to the car of Professor Harkey. In other words, that the driver of the Geis car was guilty of contributory negligence. The issue cannot be determined on an appeal from a ruling on venue. Miller v. Cozart, Tex.Civ.App., 394 S.W.2d 22.

The judgment overruling the appellant’s Plea of Privilege is affirmed.


author: GREEN, Chief Justice.

text:
    GUADALUPE VALLEY ELECTRIC COOPERATIVE, INC., Appellant, v. James Phillip TOWNS, III, et ux., Appellees.
    No. 131.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 8, 1965.

      John A. Romberg, Gonzales, for appellant.
    Roger M. Dreyer, Gonzales, for appellees.
   GREEN, Chief Justice.

This is a suit for damages to land. On or about June 21, 1962, appellant, through its agents and employees, entered upon ap-pellees’ 12.941 acre tract of land in Gonzales County, Texas, and cut a number of trees of various kinds and sizes in the process of clearing a right of way for construction of a distribution line. It was found by the trial court at a pre-trial hearing that appellant had acted without authority or right, and by a preliminary order all issues except those of damages were eliminated from the trial. At the close of the evidence three special issues were submitted to and answered by the jury. Issue No. 1 inquired as to the market value of appellees’ property immediately before the trees were cut; issue No. 2 asked such value immediately after the trees were cut; and issue No. 3 asked as to the amount that would compensate ap-pellees for the time and money reasonably and necessarily spent in supervising and planning the clean-up operations. To these issues the jury answered (1) $14,000.00; (2) $12,000.00; (3) $500.00. Judgment was rendered for appellees for $2,500.00, with interest at 6% per annum from date of judgment.

Appellees’ property is located on a lake created by a dam on the Guadalupe River. At the time of the tree cutting, there were a number of privately owned resort houses in the area of appellees’ land. Although ap-pellees’ property extends to the lake, the portion actually damaged was on a flat bluff about 90 feet above the water. The lower part adjoining the water and below the bluff contained deep ravines and a large gully, and was not suitable for building sites. Appellee Towns testified that his main purpose in securing this property, a year being spent by him in blocking it up, was to subdivide the flat upper part into six building lots, develop them as rental property as a lakeside resort, and build a road over the bluff to the lake to give the property access to the water. Construction had been commenced on the road, which at the time of the trial was approximately 75% completed. The evidence was abundant that the value of the upper lots as building sites for a resort development was materially reduced as a result of the loss of the trees.

Appellant’s first point alleges error in the action of the trial court in overruling its objection to the testimony of appellees’ witness Knight. The second point complains of the court’s overruling its motion, made after both parties had rested, to strike the testimony of appellees’ witnesses Knight and Wiley.

Knight on direct examination testified that he was a real estate broker in Gonzales, that he had seen the property both by himself and with appellees, was familiar with the area where the trees were cut, and saw evidence that a number of trees had been cut; that the plat in the record accurately described appellees’ property; that he was familiar with real estate values in the area of property; that appellees’ land was susceptible to having access to the water and that he had seen the road under construction to the water edge, and that the land was desirable as lakeside property. He stated that the six lots situated on the bluff where the trees were cut were each damaged a minimum of $500.00, and that the entire tract had a value of $15,000.00 before the damage, and 12 or maybe 11 thousand after:

On cross-examination, Knight stated that he was predicating his testimony of value upon access to the waterfront being completed, and that the improvements had not been completed on June 21, 1962, the date the trees were cut. He stated he could not testify as to the condition of the property on June 21, 1962, as he was not familiar with the property at that time.

Appellant thereupon made the following motion to the trial court: “If the Court please, I believe that testimony should be stricken from the record. It is evidence that the witness is not testifying as to the market value as of that date, nor has he allowed any for the expense of making the subdivision or various other things. His statement is (sic) as to market value is predicated on a condition that did not exist.” This motion, or objection as appellant terms it, was-overruled, and exception duly taken. Appellant briefs the point as though this was an objection to all of Knight’s testimony given on direct examination of value of the property, though none of the evidence on direct examination was particularized in the objection or motion to strike. We feel that the motion is concerned more with the weight of Knight’s evidence than to its admissibility. Culver v. State, Tex.Civ.App., 324 S.W.2d 921; Foley Bros. Dry Goods Co. v. Settegast, Tex.Civ.App., 133 S.W.2d 228, p. 233, writ ref.

However, if portions of Knight’s evidence had been subject to proper objection, no such portions were designated by appellant. A motion to strike the evidence of a witness not specifying the particular testimony to be struck is too general, and overruling such a motion is not error. The trial court is not called upon to cull out a particular part of the evidence upon a motion to exclude. Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621, 623, 36 L.R.A. 64; Galveston, H. & S. A. Ry. Co. v. Gormley, 91 Tex. 393, 43 S.W. 877; Foley Bros. Dry Goods Co. v. Settegast, supra; Waller v. Summers, Tex.Civ.App., 299 S.W.2d 752, writ ref. n. r. e. If the evidence is admissible in part, and inadmissible in part, and the motion to strike is general, going to the whole, the motion should be overruled where it does not specifically point out the inadmissible testimony. Texas Pipeline Co. v. Ennis, Tex.Civ.App., 44 S.W.2d 773, writ dism.; Bennett v. Hood, Tex.Civ.App., 238 S.W.2d 587; Waller v. Summers, Tex.Civ.App., supra.

Appellees’ witness Wiley testified on direct examination that he owned developed property on the lake, and was familiar with value of lakeside land in that area. He had been familiar with appellees’ property before and after the trees were cut. He stated that appellees’ property was suitable for lake cottages, and summer homes. He testified in part as follows:

.“Q In your opinion, Mr. Wiley, what was the fair market value of this entire tract of Mr. Towns’s before the trees were cut?
A Well, I would have to say this: He was making an incline to the water, which increased the value of his lots and since no lots are available, people are hunting lots. I think I could safely say 12 or 13 hundred dollars a lot on those.
Q What would that make the entire property worth as a unit?
A 13 or 14 thousand dollars.
Q 13 or 14 thousand?
A Yes.
Q Do you have an opinion as to what the value of this property was worth after the trees were cut?
A Well,—
Q Do you ha,ve an opinion?
A For lake property, you buy the property for the lake and for the shade trees. I would think it would decrease it. I would want a tree on mine. It would decrease it SO percent.
Q You have an opinion?
A It would be in my opinion. It would lessen my desire to buy one with the trees off of it.”

On cross-examination, Wiley stated that his testimony of value of the property was “with access to the water.” Without such access the value would be less. In this connection, we quote from his evidence as follows :

“Q You can’t think of any lots that didn’t have water frontage that were leased ?
A Well, they were all had water frontage, but some of them couldn’t get to the water as well as others could.
Q Now, in order to permit access from these lots to the water there would have to be a great deal of work done, would there not, Mr. Wiley?
A Yes, sir.
Q Would that be an expensive job?
A It would be expensive, yes, sir, bulldozing.
Q Well, now, are you putting this value on there as without taking into account the cost of that?
A I would take that into account. In other words after it is developed for that purpose, if he is going to sell them he would have to get that to come out.
Q In other words, after they are developed, they would be worth that?
A Yes, sir.”

No objection to any part of Wiley’s evidence was made by appellant. However, after all of the evidence was in, and both parties had rested, and all witnesses excused, the following proceedings occurred:

“MR. ROMBERG: The Defendant moves that the testimony of the witnesses, Caroll Wiley and Richard Knight, be stricken from the record, because it shows on its face that it was made in view of a proposed subdivision which did not actually exist. It attempted to show the retail value of a processed subdivision and did not give any evidence as to the cost of placing the property in a subdivided condition. It did not give the expense of the acrage or the expense of constructing roads and ramps to the water’s edge. It did not give the expense of constructing, subdividing, surveying, and creating a subdivision and as such, gives no relevant testimony from which the jury could arrive at the market value as of June, 1962.
THE COURT: That motion will be overruled.
MR. ROMBERG: Note our exception.”

The motion to strike was general, being directed to all of the testimony of Knight and Wiley. For the reasons heretofore stated as to the first motion or objection concerning Knight’s testimony, the court properly overruled the motion to strike the evidence of Knight and Wiley. Also, the motion was not timely made. Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407.

Though the evidence disclosed that the subdivision of the land suitable for development on the bluff did not actually exist, and the road to the lake had not been completed, when the damage was done, ap-pellee’s testimony and that of Knight and Wiley, and other witnesses, showed clearly that the land was adaptable to such subdivision and development, and that its highest and best value was as a resort for lakeside cottages. Appellee testified he had purchased and blocked up this property with just that purpose in mind. At the time the trees were cut, he had started the improvements necessary to secure water access to the usable land on the bluff which he purposed to develop. Such land at that time, even though the improvements had not been completed, was valuable for the purpose to which it was most adaptable, and the testimony of the witnesses Knight and Wiley as to such value was admissible as probative evidence under the circumstances. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194; City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808; Lower Colorado River Authority v. Hughes, Tex.Civ.App., 122 S.W.2d 222, writ dism.; Continental Pipe Line Co. v. Kiel, Tex.Civ.App., 227 S.W.2d 825; Tennessee Gas Transmission Co. v. Adamsen, Tex.Civ.App., 262 S.W.2d 445; Foley Bros. Dry Goods Co. v. Settegast, supra. As stated in Culver v. State, Tex.Civ.App., 324 S.W.2d 921:

“The fact that appellants would have to drill a well or wells, or contract with a third party to get sufficient water, and the fact that some leveling would have to be done to make the 211 acres ready for rice growing merely go to the weight of appellant’s testimony that the land was adaptable to rice farming.”

In City of Austin v. Cannizzo, supra, a condemnation suit involving property in an area zoned so that a shopping center could not be built on the property, witnesses were permitted by the trial court to testify of its value including its adaptability as a shopping center. In upholding the ruling of the trial court, the Supreme Court said in part:

“If the trial judge is satisfied from the evidence as a whole that there is no reasonable probability that existing restrictions may be lifted within a reasonable time, he should exclude evidence of value based on use for any purposes other than those to which it is restricted. On the other hand, if it appears reasonably probable to the trial judge that the wants and needs of the particular community may result, within a reasonable time, in the lifting of the restrictions, he should admit testimony of present value based on prospective use of the property for purposes not then available. * * * ”

For the reasons stated the trial court did not err in denying appellant’s motions to strike the testimony and points 1 and 2 are overruled.

By its sixth and seventh points of error appellant contends that the evidence is insufficient, legally and factually, to support the jury’s answers to special issues No. 1 and No. 2, inquiring as to the value of the property before and after the trees were cut. Garza v. Alviar, Tex.Sup.Ct., 1965, 395 S.W.2d 821.

In addition to the testimony on value heretofore detailed, appellee, after qualifying as competent to give his opinion, in answer to an inquiry as to the market value of his property before the trees were cut, stated: “The land should have brought me $16,-500.00”, and that the market value after the trees were cut was $12,500.00. No objection was addressed by appellant to this testimony, nor was appellee cross-examined as to such answers.

Appellant offered a number of qualified witnesses on value, all of whom placed, a much lower figure on appellees’ damages than did appellee and his witnesses. We have carefully considered all of the testimony included in the statement of facts and the exhibits of both parties, and find that the evidence is legally and factually sufficient to support the answers to special issues No. 1 and No. 2.

Appellant’s sixth and seventh points are overruled.

By its 3rd, 4th, and 5th points, appellant makes the contention that the answer of the jury to special issue No. 3 was without support in the evidence both legally and factually, and that such answer was grossly excessive. By their answer to this issue, the jury found that $500.00 was the amount which would compensate appellees for the time and money reasonably and necessarily spent in supervising and planning the cleanup operations on the premises after the trees had been cut.

Appellee Towns testified that appellant agreed to clean up “the mess” caused by the trees being cut, but that in so doing, the employees had orders from appellant not to do anything without his being there to supervise the work. He made 21 trips to the property, which was 14 miles from his place of business, many at appellant’s request, but his testimony does not show the purpose of such trips, or that more than two or three were connected with the cleaning-up operations. A number of said trips were in regard to the location of a new electric line on his premises, and for other purposes not connected with such clean-up. He testified that he was away from his business about 80 to 100 hours while making the 21 trips, during which time he had to pay extra help at his place of business an amount between $75.00 to $200.00, but again he declined to estimate how much of the time or money was spent due to his going to see about any supervising the cleaning up his land due to appellant’s cutting the trees.

Appellee offered no evidence of the value of his time and services. There was no evidence of the reasonable expense incurred by him on any of his trips. No proof was made that the amount he paid to the help he employed during his absence from his business was reasonable. The burden was on appellees to present sufficient evidence of the amount and extent of his reasonable and necessary expenses spent in supervising and planning the clean-up operations in order to enable the jury to base its verdict on an intelligent judgment, not mere conjecture. Dickey v. Jackson, Tex.Com.App., 1 S.W.2d 577; Phoenix Refining Co. v. Tips, Tex.Civ.App., 66 S.W.2d 396; Dalby v. Lyle, Tex.Civ.App., 105 S.W.2d 764.

We hold that the answer of the jury to special issue No. 3 is not supported by the evidence, either legally or factually, and that the amount of the judgment entered below should be decreased by $500.00.

The judgment of the trial court is reformed, so that the amount of recovery is $2,000.00 with interest at 6% per annum from July 3, 1964, the date of the decree. Costs of this appeal are assessed 80% against appellant, and 20% against appellee.

Reformed and affirmed.


author: COLEMAN, Justice.

text:
    Lawrence VACCARO et ux., Appellants, v. Margaret ROUGEOU, Appellee.
    No. 14674.
    Court of Civil Appeals of Texas. Houston.
    Dec. 16, 1965.
    Rehearing Denied Jan. 6, 1966.

      Peareson, Scherer, Roberts & Slone, Charles R. Slone, Richmond, for appellants.
    Brigman, Martin & Smith, T. D. Smith, Houston, for appellee.
   COLEMAN, Justice.

This is a suit to enjoin the operation of a beauty parlor in the attached garage of a house located in a subdivision restricted to residential use. The trial court held that this activity did not constitute a violation of the restrictions and refused the injunction.

The restrictive covenants pertinent to a decision of this case read:

1
“All lots are residential lots, and no structure shall be erected on any residential lot other than one detached single family dwelling not to exceed two stories in height and other outbuildings incidental to the residential use of such lot. This restriction shall be held and construed to exclude apartment houses, duplex houses and multiple family dwellings of any kind and no residential structure shall be erected in said subdivision upon any portion thereof comprising an area less than one (1) lot as shown by said plat of record.
«* * *
3
“No noxious or offensive activity shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.”

The trial court made findings of fact, including:

V.
“Plaintiffs are lawfully entitled to the benefits of said restrictions and to maintain an action to enjoin a breach thereof.
VI.
Since the date of the establishment of said restrictions, they have been, and they still are, in full force and effect.
VII.
“The Defendant is a widow and resides on the property described above with her three children. She is a duly licensed beauty operator and limits her profession to friends and relatives by appointment only. She does not, nor does she intend to in the future, treat disease in her beauty shop; and she does not now, nor does she intend to in the future, maintain any listing in the yellow sheets of the telephone directory nor any sign upon her premises except a sign containing a number used to designate the street address of her residential property. The Defendant occupies the property as her residence and has enclosed one-half Q/2) of the interior of her garage as a beauty shop. There has been no exterior change in the appearance of the residence. The only equipment in the beauty shop are two dressing tables, three dryers and two chairs. The Defendant does not have a waiting room for her customers and usually processes no more than three people at any given period of time. Defendant does not maintain a place of business elsewhere for the practice of her profession. Her customers park their cars on her driveway and on the street in front of her residence. Parking of cars of her customers does not interfere with traffic nor does it constitute a traffic hazard.”

Restriction No. 1 quoted above must be construed as forbidding any use of the building erected on the lot in question for other than residential purposes. Davis v. Hinton, Tex.Civ.App., 374 S.W.2d 723, ref., n. r. e.; Chandler v. Darwin, Tex.Civ.App., 281 S.W.2d 363; Walker v. Dorris, Tex.Civ.App., 206 S.W.2d 620, ref., n. r. e.

In Briggs v. Hendricks, 197 S.W.2d 511, this Court said:

“Courts judicially know that the purpose of restricting lots in additions to cities to residential use, is to establish an area free from commercial activity, and thereby enhance the value of such lots as residential property. The word ‘residential’ as used in a cowvenant restricting the use of property, is used in contradistinction to ‘business’ or ‘commerce.’ A building used as a place of abode, and in which no business is carried on, is devoted to a ‘residential use’ so long as such use continues. See Hunt v. Held, 90 Ohio St. 280, 107 N.E. 765, 766, L.R.A.1915D, 543, Ann.Cas.1916C, 1051.”

In Baker v. Brackeen, Tex.Civ.App., 354 S.W.2d 660, the court said:

“If there was no other matter to be determined, other than the question of operating the beauty parlor, that would be using the residence for a purpose other than exclusively residential purposes and we would be compelled to hold that such use was in violation of the restriction prohibiting the use for other than residential purposes.”

In this case, however, the court stated that a further provision prohibiting noxious or offensive trades or other activities created a substantial doubt as to the meaning of the restrictions which should be resolved in favor of the free use of the land. The Court then said:

“It is expressly set out in the restrictions that all of the blocks in the Sunny Hill Addition shall be used exclusively for residential purposes. If that expression is considered alone, then, no trade or other activity of any kind could be considered. But then the restrictions go further and state that no noxious or offensive trade or other activity shall be carried on upon any other lot or tract in the addition, nor should anything be done thereon which may be or become a nuisance or gross annoyance to the neighborhood, we think it necessarily implies that Mrs. Brackeen might carry on her beauty activities unless it is noxious or offensive, etc.”

Here there would be no restriction against noxious or offensive activities merely by reason of the restriction to residential use. These activities would not necessarily arise by reason of a trade or business use of the premises. No limitation of the restriction to residential use would be implied by the inclusion in the restrictive covenant of paragraph 3 quoted previously.

The question to be determined here, therefore, is whether the use of a portion of the premises exclusively for a beauty parlor business constitutes a violation of the covenant. The trial court found that part of the garage had been converted into a beauty parlor and appellee testified that she was operating a beauty shop business in the garage and that if she could develop enough business, she intended to operate the beauty shop full time.

It is clear that it was the intention of the developers to restrict all lots in Vaccaro Manor, Section 2, to a residential use. They are specifically designated residential lots. Only a single family dwelling and outbuildings “incidental to the residential use” of a lot can be constructed on it. The operation of a business is not a residential use of the house. Pardo v. Southampton Civic Club, Tex.Civ.App., 239 S.W.2d 141, error ref.

In Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516, the Court said that if on retrial of the case it should develop that the dwelling house of a particular defendant is being used primarily as a residence for the owner, no injunction should issue against the incidental renting by the defendant of a room or rooms to others. The court also said that a defendant should be enjoined if he is operating a rooming or boarding house as a business, or is using his dwelling house primarily as a source of financial gain rather than as a residence for himself and his family. The court also cited cases as authority for the proposition that the use of premises as a residence with the incidental renting of a room does not constitute the operating of a rooming house.

This case stands for the proposition that the incidental renting of rooms in a dwelling house, not constituting the operation of a business, is a residential use of the premises. It does not therefore, control this case since the use of part of the premises as a beauty parlor is not a residential use.

Doctors and lawyers, from time to time, may find it necessary or convenient to see patients or clients in their homes and frequently discuss business matters over their home telephones. Business men may bring home papers for study or entertain customers at their places of residence. Salesmen may keep their samples at home, or their business vehicles may be stored there at night. Other uses may be made of a residence which might technically be considered a business use, but these activities, commonly carried on at the residence of business and professional people, might well be considered residential uses where they are clearly incidental to the use of the house as a residence.

The use of a part of this house as a beauty parlor and the threatened continuation of this use as a full time occupation constitutes a violation of the restrictive covenant and the trial court erred in failing to enjoin such use.

The judgment of the trial court is reversed and judgment is here rendered enjoining Margaret Rougeou from operating a beauty parlor business at the premises described as Lot 28, Vaccaro Manor, Sec. 2, in the City of Stafford, Fort Bend County, Texas.


author: PHILLIPS, Justice.

text:
    Chester R. MORRIS, Appellant, v. Anthony P. ROUSOS and Medical Protective Co., Appellees.
    No. 11347.
    Court of Civil Appeals of Texas. Austin.
    Dec. 8, 1965.
    Rehearing Denied Jan. 5, 1966.

      Chester R. Morris, Austin, for appellant.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, T. B. Wright, J. C. Davis, Pat Bailey, Asst. Attys. Gen., Brown, Sparks & Erwin, Will G. Barber, Austin, for ap-pellees.
   PHILLIPS, Justice.

This case involves an appeal from the District Court wherein appellant Morris sought damages against the appellee Dr. Rousos for certain alleged acts of the ap-pellee resulting from appellant’s commitment to the Austin State Hospital. Appellant also joined the Medical Protective Company, the professional liability insurer of appellee, as a party to the suit.

The trial court sustained the motion for summary judgment of appellee Rousos and also sustained the plea in abatement of ap-pellee Medical Protective Company.

We affirm the judgment of the trial court.

Appellant is before this Court on sia points of error, the first two complaining of the trial court in granting appellee: Rousos’ motion for summary judgment, the third being the error of the court in not granting appellant’s motion for summary judgment. Appellant’s fourth and fifth points of error complain of the trial court’s granting Medical Protective Company’s plea in abatement. Appellant’s sixth point of error is that of the trial court in denying appellant’s motion for change of venue.

We overrule these points.

This case is similar to and is governed, for the most part, by our two prior opinions involving this same appellant. See Morris v. Nowotny et al., 323 S.W.2d 301, and Morris v. University of Texas et al., 348 S.W.2d 644. In these cases, as here, appellant brought suit against certain officials of the University of Texas for acts allegedly arising out of the above-mentioned commitment. We held that where public officials are charged by general language with wrongful and malicious acts and conduct that such pleading should not be liberally construed or that any in-tendments should be entertained in aid of the pleading. We held that the valid, sound and legal presumption is that pub-lie officials perform their duties in a fair and efficient manner and that when the contrary of this presumption is averred, it should he specific and detailed. Conclusions unsupported by facts will not suffice.

Most of the allegations against appellee are similar to those leveled against appel-lee and other officials in the former Morris cases cited above. Possible new allegations of wrongdoing on the part of the appellee Rousos is that he had written a letter stating that appellant “was suffering either from a presenile psychosis or an early cerebral arteriosclerotic change.” That appellee had not examined appellant and therefore could not have validly made such a diagnosis. The copies of the above-mentioned letter were retained in the files at the University where prospective employers of appellant had access to them. That these prospective employers had seen the letters and consequently had not employed appellant or had discharged him after employment. That appellant was damaged in the sum of some $90,000.00 because of these acts of appellee.

Appellee Rousos set forth in his motion for summary judgment that the pleading of the appellant failed to adequately allege that the appellee had intentionally and willfully committed an unlawful act injurious to appellant, and that the pleading of appellant failed to adequately allege a cause of action against appellee upon which a claim for money damages could be predicated.

The supporting affidavits to appellee’s motion for summary judgment state that appellee was, at all times material to the instant litigation, a physician licensed to practice in Texas; that he was at all times material to this litigation an employee of the University of Texas, an agency of the State of Texas, with duties at the student health center; that the medical opinions expressed in the affidavit executed by appellee in Cause No. 1801 in the County Court of Travis County, Texas styled State of Texas v. Chester R. Morris, concerning this appellant were based upon sufficient observation and examination to arrive at such medical opinion.

Again we must strictly construe these pleadings of appellant so as to achieve substantial justice and we must hold that they do not adequately allege that appel-lee has intentionally committed any unlawful act injurious to appellant. When confronted by appellee’s motion for summary judgment with the attendant affidavit, appellant was unable to respond with even the vaguest suggestion of proof to the surmise and conclusions he had plead. A reading of appellant’s petition, which is eighty-five pages long, demonstrates that all of the officials of the University named therein were well aware of his pattern of conduct. Consequently, it would be folly under the facts of this case to single out the appellee, a licensed psychiatrist, from these officials as one being without sufficient facts upon which to base a diagnosis of appellant.

Likewise, in view of the summary judgment proceeding, there is insufficient pleading and “summary judgment evidence” that appellee willfully or maliciously placed false information in appellant’s record which acted as a detriment to his employability.

The trial court was correct in granting appellee Medical Protective Company’s plea in abatement. Appellee Rousos’ liability insurance policy contains a valid and enforceable provision precluding any action against Medical Protective Company “unless brought after the amount of such loss shall have been fixed * * * by a final judgment against the insured. * , * *” Appellant’s pleadings show on their face that no such prior judgment has been rendered against Rousos. See Pattison v. Highway Insurance Underwriters, Tex.Civ.App., 278 S.W.2d 207, writ ref., n. r. e. See also Rule 51(b) Texas Rules of Civil Procedure.

We overrule appellant’s sixth point of error which was that of the trial court in refusing to grant appellant’s motion for a change of venue. Appellant himself brought this suit in Travis County. We hold that the trial court did not abuse his discretion in refusing appellant’s motion. See Bennett v. Jackson, Tex.Civ.App., 172 S.W.2d 395, writ ref., w. o. m.; Texas & N. O. Ry. Co. v. Wilkerson, Tex.Civ.App., 260 S.W.2d 912. This is especially true inasmuch as the case was correctly decided by a summary judgment.

We affirm the judgment of the trial court.

Affirmed.

ARCHER, C. J., not participating.


text:
    DYE TRUCKING COMPANY, Appellant, v. Walter A. MILLER et al., Appellees.
    No. 11341.
    Court of Civil Appeals of Texas. Austin.
    Dec. 8, 1965.
    Rehearing Denied Jan. 5, 1966.

      Dan Felts, Dean Moorhead, Austin, for appellant.
    White, McElroy & White, Dallas, Small, Small & Craig, C. C. Small, Jr., James, Robinson & Starnes, Phillip Robinson, Austin, Kelley, Looney, McLean & Little-ton, Edinburg, Clark, Thomas, Harris, Den-ius & Winters, Jerry C. Prestridge, Austin, for appellees.
   PHILLIPS, Justice.

This case presents the question of whether the term “batch cement,” as used in a Specialized Motor Carrier Certificate held by Appellant Dye Trucking Company, permits the appellant to transport the commodity “bulk cement.”

In the trial court appellant claimed that under the term “batch cement,” as used in its certificate, it is fully entitled to transport bulk, dry cement, unmixed with water, sand or any other substance, the dry cement not being contained in sacks, packages or other containers, for hire over the highways of the State of Texas not to exceed 350 miles in distance.

Appellees contended that the term “batch, cement,” as used in appellant’s certificate, does not include bulk, dry cement and that appellant is not entitled to transport this commodity under color of such certificate.

The trial court rendered judgment for ap-pellees and we affirm his judgment.

Appellant is before this Court with eight points of error assigned to the judgment of the trial court. Points One and Three complain of the trial court’s judgment in holding that appellant is not authorized to transport bulk cement. Point Two complains of the trial court’s judgment in failing to hold that appellant had this authority. Point Four says that there is “no evidence” to sustain the holding. Point Five states that there is “insufficient authority” to support the trial court’s judgment and Point Six states that the holding is “contrary to the great weight and preponderance of the evidence.” Points Seven and Eight are alternative in nature and state that the trial court should have at least held that appellant had the authority to transport bulk cement to “batching plants.”

We overrule these points.

It is generally agreed between the parties hereto that this case hinges upon what the Railroad Commission meant by “batch cement” when it issued the appellant the certificate in question.

The original application, filed in 1950 under the above-described statute, out of which the authority claimed by the appellant originates, stated the commodities for which authority was requested as follows:

“Applicant proposes to transport gravel, rock, caliche, shell, iron ore, ready mix asphalt, dry cement, sand, stone, round and crushed, loose in bulk * * * ” (Emphasis added.)

The application stated that these commodities were to be transported in the following manner:

“ * * * in truck load lots in dump trucks or trailer loads in dump trailers Sji $1 $

The proposed transportation was to take place:

“ * * * from gravel pits and other storage places to construction sites, including buildings, dams, streets, and highways and all other kinds of structures where in the course of such transportation the longest haul will not exceed 150 miles.”

The application, in describing the “specialized equipment” to be used, said:

“The dump truck has become a vital and essential piece of equipment or machinery in the construction of not only highways, roads, streets, dams and buildings and all other types of structures because outside of the steel and lumber, the commodities handled loose in bulk in dump trucks constitute a large part of the materials going into such construction. The dump truck or trailer is so constructed that its bed will contain several yards of any of the commodities described herein and can be conveniently loaded by a mechanically operated shovel. The bed of the dump trailer is specially constructed so as to withstand the heavy load and is so attached to the truck by mechanical devices that by a single movement of the hand the driver can overturn the bed so as to unload the commodity at the exact spot where it will be used in construction.”

The application contains the following statement:

“There are only a few specialized motor carriers who are authorized to transport the commodities described and render the service in dump trucks and dump trailers as proposed in this application.”

This is followed by a list of such carriers.

The application then says:

“The above styled carriers with the exception of Sparks Trucking Company of Victoria have only recently procured their certificates and like these applicants were operating long prior to the filing of these applications.”

Pursuant to this application the Commission granted Specialized Motor Carrier Certificate No. 8590, setting out the authority granted in the following language:

“Gravel, rock, caliche, shell, iron ore, ready mix asphalt, batch cement, sand, stone, round or crushed, loose in bulk * * * ” (Emphasis added.)

These commodities, according to the Certificate, were to be transported in the following manner:

“ * * * in truck load lots in open dump trucks or trailer loads in dump trailers * * * ” (Emphasis added.)

These commodities were to be transported in such manner from and to the following places:

“From gravel pits and other storage places to construction sites, including buildings, dams, streets and highways and all other kinds of structures where in the course of such transportation the longest haul will not exceed 100 miles.” (Emphasis added.)

The Certificate issued by the Commission differs from the application in the following respects:

The word “batch” has been inserted in lieu of the word “dry” before the word “cement” in the commodity description. The word “open” has been inserted before the word “dump” in the equipment description. The mileage has been reduced from 150 to 100 miles.

In 1960 an application was filed to amend Specialized Motor Carrier Certificate No. 8590 in the following manner:

“So as to remove the present restriction of miles the commodities sand, gravel, etc., now authorized may be transported and allorv- such commodities to be transported between all points in Texas without restriction as to distance between origin and destination without change in commodities now authorized.”

This application disclaimed any intent to make any change in the commodity authority set out in the original Certificate in this language:

“Let it be emphasized that no authority is sought hereby to eliminate, add or change the commodities that may be transported.”

Apparently similar applications were made by other carriers of the general type because a joint order covering several applications were issued by the Commission on May 7, 1961. The Commission order pursuant to these applications reads as follows:

“The commodities SAND, GRAVEL AND OTHER ROAD BUILDING MATERIALS may be transported a distance of three hundred fifty (350) miles from point of origin to point of destination.”

In 1963 an application was made to divide the authority contained in Specialized Motor Carrier Certificate 8590. The application stated that a portion of the authority was to be sold and the balance of the authority was to be carved out and set up under a different certificate. The Commission granted the request to divide and issued a new Certificate No. 21,213, in which the carved out authority (which is at issue in this case) is described as follows:

“The transportation of BATCH CEMENT, in bulk, in truck load lots, in open trucks or trailer loads in dump trailers, over irregular routes and upon irregular schedules, between all points and places in Texas, in the movement of said commodities from storage places to construction sites, including buildings, dams, streets, and highways, and all other kinds of structures where in the course of such transportation the longest haul will not exceed 350 miles.” (Emphasis added.)

This remnant of the original authority is now held by appellant, Dye Trucking Company.

Many witnesses testified for both appellant and appellees and from this testimony there is little or no controversy over the fact that the term “batch cement” is a term that is not used in the cement industry and for all practical purposes is meaningless in itself. There is also general agreement that the word “batch” standing by itself and used as a noun has a well known meaning in the cement industry and refers to a dry mass or mixture of cement, sand and aggregate. The word cement has the same meaning generally ascribed to it by the general public and can be described as a grey, powdery substance that when mixed with stand, gravel and water forms concrete.

The Motor Carrier Act provides that the Commission shall have no jurisdiction to consider any specialized motor carrier application unless the application sets forth in detail:

“The commodity or commodities or class or classes of commodities which the applicant proposes to transport and the specific territory or points to, or from, or between which the applicant desires to operate, together with the description of each vehicle which the applicant intends to use.” (Section 5a(c)2, Art. 9lib, V.A.C.S.)

The Act also states:

“The order of the Commission granting said application and the certificate issued thereunder shall be void unless the Commission shall set forth in its order full and complete findings of fact pointing out in detail the inadequacies of the services and facilities of the existing carriers, and the public need for the proposed service.” (Section 5a(d), Art. 911b, V.A.C.S.)

It is also the law in Texas that the intention of the Railroad Commission, as expressed in the certificate, is a question of law and, further, that the application of the Commission for authority and the order issued by the Commission are to be taken into consideration in arriving at such intention. See State v. Bilbo, 392 S.W.2d 121, Tex.Sup.Ct.

Grants of property rights or privileges by legislative act such as the right to transport certain commodities for hire must be construed strictly and whatever is not unequivocally granted in clear and explicit terms must be considered withheld. Magnolia Petroleum Company v. Walker, 125 Tex. 430, 83 S.W.2d 929.

Appellant claims the right to transport bulk cement for hire in this State. In order to have such a right, appellant must have a valid certificate from the Railroad Commission granting such right in accordance with Art. 911b, V.A.C.S. The burden is upon the appellant to demonstrate that the certificate it holds grants such authority unequivocally in clear and explicit terms. Unless the Commission granted the authority to transport bulk cement in the original certificate issued under Specialized Motor Carrier Certificate No. 8590, such authority does not exist.

Appellant argues that one of the accepted general definitions of the word batch is a verb meaning to weigh. That batch cement means a weighed or measured amount of dry cement. Another meaning of batch cement could mean a lot of cement or a quantity of cement.

Appellant further suggests that batch cement, in bulk, means dry cement in bulk as distinguished from dry cement in sacks.

Appellant also contends that in applicant’s original application for the authority in question, authority to haul dry cement was requested, that the Certificate of the Commission gave them authority to haul batch cement; that the Commission mistakenly substituted “batch” for “dry;” that from this an inference can be drawn that the two terms are synonymous.

Appellant further contends that the term in controversy should at least allow appellants to haul dry cement to a location where it would become part of a batch or to a site of a “batching plant.”

Nor are we impressed with the fact that appellant had, at times in the past, hauled dry cement in certain instances in Dallas or the fact that later certificates to carriers of a class such as appellant are more specific in the grants of authority wherein they use the word “batch” or “bulk cement” mixed with sand and gravel.

It would be poor law, indeed, to start with an admittedly unclear term in a certificate and to project therefrom what the Commission might have meant thereby through surmise and pure guess. The statute requires full and complete findings to support a grant of authority to a specialized motor carrier and any authority that has to be construed by the methods suggested by appellant was either not affirmatively presented to the Commission or was not granted.

We must conclude that the Commission intended to grant appellant authority to haul some commodity other than “cement.” If evidence of the need of appellant’s services as a cement hauler was presented to the Commission, no finding in respect thereto was made in the order granting the certificate in question. In order to be a valid grant of such authority, such a finding is necessary.

The original application makes it clear that the applicant was among a group of dump truck operators seeking Railroad Commission authority for the first time in 1950. The original application was for authority to haul the class of commodities then customarily hauled in dump trucks and trailers. A dump truck operator could not have hauled “batch” without some cement authority. He would, in the absence of some cement authority, have been limited to sand and aggregates. Therefore, the Commission, in order to grant him a workable authority to haul this well known dump truck commodity, used “batch” to describe the circumstances under which he could haul the commodity “cement.” The use of the word batch was deliberate and purposeful on the part of the Commission. If unlimited cement authority had been intended, the Commission would not have seen fit to drop the descriptive word “dry” as used in the application and substitute the word “batch.”

We affirm the judgment of the trial court.

Affirmed.

ARCHER, C. J., not participating.


author: WERLEIN, Justice.

text:
    Howard B. JORDAN, Jr., Appellant, v. AFTON ENGINEERING CO., Inc., et al., Appellees.
    No. 14678.
    Court of Civil Appeals of Texas. Houston.
    Dec. 9, 1965.
    Rehearing Denied Jan. 6, 1966.

      Erwin, Wagner & Hodson, Lynn C. Woods, Jr., Houston, for appellant.
    Lockett, Brady, Walton & Hooey, Eugene Brady and Dan Walton, Houston, for appellee Afton Engineering Co., Inc.
    Kelley, Ryan & Merrill, William J. Merrill, Houston, for appellee Humble Oil & Refining Co.
   WERLEIN, Justice.

This is an appeal from a summary judgment.

Appellant, Howard B. Jordan, Jr., brought suit against Afton Engineering Company, Inc., hereinafter referred to as Afton, and Humble Oil & Refining Company, alleging in his unsworn petition that on or about August, 1964, appellant and ap-pellee Afton associated themselves together in a joint venture for the purchase of certain multi-stage centrifugal pumping units for the purpose of resale, lease and/or rental of such units to third parties; that appellant and appellee agreed that each would use his best efforts in purchasing and reselling or leasing three certain pumps owned by Brazos Engineering Company and also in the subsequent purchase, resale and/or lease of multi-stage centrifugal pumping units subsequently discovered by appellant or appellee; that appellant in January, 1965, discovered appellee had purchased in its name said three pumps and seven additional pumps and had entered into a lease agreement with Humble covering the ten pumping units.

Appellant also alleged that he advised appellee he was able and willing to carry out the agreement and he offered to pay his portion of the costs, which appellee refused. He alleged that an accounting should be had, and he sought a judgment impressing a trust upon the proceeds accruing under the lease to Humble to the extent of his interest.

Appellee Afton in its sworn answer denied all the allegations in appellant’s petition and specially denied that it and appellant had associated themselves together as alleged by appellant, and denied that there existed any joint venture or partnership agreement between them as to any of the pumping units described and referred to in appellant’s petition.

Humble prayed that the court direct it as to what disposition should be made of monies, if any, held in suspense by it, and that it recover its expense if an accounting was required, and reasonable attorney’s fees, costs of court, and general relief.

Appellee filed a motion for summary judgment supported by the pleadings, the deposition of appellant, Howard B. Jordan, Jr., and the affidavit of Ira Q. Mayhew, president of Afton, with copy of the Afton-Humble lease attached as an exhibit. Appellant filed a controverting affidavit made by him.

The court granted the motion for summary judgment, and decreed that appellant take nothing against appellee. The judgment further provides that Humble is entitled to act as a stakeholder or inter-pleader, and ordered Humble to pay Afton any and all rental payments due and to become due in its agreement with Afton, “less, however, the reasonable attorney’s fees and costs incurred by it,” and provides Humble shall withhold $1500.00 for attorney’s fees and costs in this proceeding. Appellant. perfected his appeal from the summary judgment and Afton perfected an appeal as to the portion of the judgment decreeing that Humble was entitled to act as a stakeholder and to recover attorney’s fees and costs. Afton later filed in this Court a motion to dismiss its appeal against Humble Oil & Refining Company, which has been granted, so that such appeal need not be considered further.

Appellant contends that the trial court erred in granting appellee’s motion for summary judgment because there was a genuine issue of a material fact as to whether appellant and appellee associated themselves together in a joint venture, and also because there was a genuine issue of a material fact as to whether there existed a confidential relationship between appellant and appellee that would give rise to a constructive trust. The record of a summary judgment proceeding consists of the pleadings whose office it is to outline the claims and defenses of the respective parties, the depositions and admissions on file and the affidavits furnished either in support of or opposing the motion. Gaines v. Hamman, 1962, 163 Tex. 618, 358 S.W.2d 557. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact must be resolved against him, and the pleadings, depositions and affidavits must be reviewed in the light most favorable to the party opposing the motion for summary judgment. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., Tex.Sup.1965, 391 S.W.2d 41. See also Gulbenkian v. Penn, 1952, 151 Tex. 412, 252 S.W.2d 929; Mecom v. Thompson, Tex.Civ.App., 239 S.W.2d 847, ref. n. r. e.

We have carefully considered the affidavits, the deposition of appellant, and the pleadings in order to determine whether any genuine issue of material fact exists. The evidence shows that appellant had formerly been employed by appellee as a salesman, and he had also worked for Brazos for some time in connection with large multi-stage centrifugal pumps; that Afton is a company engaged in manufacturing centrifugal pumps of all sizes, and engaged in handling and selling other manufacturers’ pumps, and dealing in used equipment.

Appellant in his deposition testified that he had a conversation with Mr. Mayhew when they were at a lunch together roughly between August and September, at which they discussed business in general, and talked also about the probable value of some pumping equipment that Brazos' Engineering and others had and about the possibilities of buying some pumps and selling or renting the same. Appellant testified that on this occasion Mayhew said: “When I get a little money ahead, I am going to think about going and talking to Paul [the manager of Brazos Engineering Company] * * * about buying the rest of these pumps”, after which appellant said: “That is fine, I would like to come in for half the money. We should buy them for stock or get busy and try to sell them or rent them to someone.”

According to appellant the luncheon discussion concluded by the parties agreeing that they would do this: “whenever the occasion arose; in other words, who got the first deal on these pumps, the chance to buy or sell them, the other would put in half the money for repairing and putting the pumps in shape for sale.” When asked whether there was any arrangement discussed as to how the matter would be financed, appellant testified that he was to put up one-half the money and Mr. May-hew’s company would put up one-half the money. He was then asked whether Mr. Mayhew had so stated, and he replied: “I so stated that he agreed that is what we would do, yes, sir.” When asked as to whether there was any discussion as to how any indebtedness or loss would be taken care of, he said he didn’t believe the matter was discussed, but it was understood the losses would be shared equally. He further testified that “back in August we agreed I would put up half the money cost, half of the money and my best efforts to sell or rent these pumps, any pumps we could own or find we put in the deal, because generally the high cost was in repairing them and getting them out on the job.”

Appellant, when asked whether he had given any assistance to Afton in regard to the purchase of pumps, testified:

“I did that by trying to make sure any inquiries on any pump deals, to use that term, would be channeled through Afton Engineering. To explain that better, most of these pumps are in such condition they must be repaired, and by helping them and by discouraging other people from buying them, I was definitely doing Afton Engineering a service.”
Q. Was this from any agreed arrangement of any sort?
A. Yes, sir, with Mr. Mayhew that we were going to try to buy them ourselves when the time appeared good to get them at a good price, or at least keep them there until such time as one of the two of us could find a place to put them on a rental basis or sale.
Q. Were you to do anything else in connection with the matter?
A. You mean with Mr. Mayhew?
Q. Yes, sir.
A. I was to put up half the money any time we got the deal.
Q. Did you ever put up any money?
A. Never had a chance, I offered to before this suit was filed and it was ignored.

He further testified that he had offered to bear half the cost of repairing any of the pumps they could get out on a rental basis. When asked if they ever agreed, he said: “Yes, Mr. Mayhew agreed.” Then followed :

Q. To pay the bills?
A. Yes, sir. Mr. Mayhew agreed to do that.
Q. Did you ever put up any money or guarantee work on having pumps repaired?
A. No, sir, this was the first deal that had come through that could be worked like this, I would say.

He was later asked as to whether he was trying to say that he had some sort of an agreement about pumps that Afton Engineering Company owned in August, 1964, and the following occurred:

A. Not all of them, no, sir.
Q. Can you tell—
A. Any specific ones?
Q. Any or all.
A. The specific equipment talked about was large, multi-stage pipeline pumps.
Q. All right, what about it?
A. All right, sir, any time that either one of us could find a deal to where these pumps could be repaired and rented or sold, we had agreed I would put up half the money, get them in working condition and sell them.
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Q. Are you trying to say, Mr. Jordan, that Mr. Mayhew or Afton Engineering Company gave you an exclusive right to sell their pumps they then owned ?
A. No, sir, I didn’t say that at all.
Q. What are you trying to say?
A. On large pipeline pumps, any of them that needed to be repaired, I would put up half the money and we would try to split the profits or realize profits out of it.
Q. You recognize Afton Engineering Company had the right to sell or lease its equipment to anyone it chose to do so, without going to Mr. Howard B. Jordan, Jr., in any way about it, don’t you?
A. Yes, sir.
Q. You don’t claim there were any other circumstances existing?
A. That is what they are claiming, I claim we had a verbal agreement just the opposite of what you say.
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Q. All right, sir, Mr. Jordan, you do not claim, do you, sir, that any equipment that Afton Engineering Company owned, that if they had it repaired and sold it that you have any interest in it?
A. That is absolutely correct, I did not have, I made it perfectly clear I wanted to stay with very large pumps.
Q. We will stay with very large pumps, any very large centrifugal pumps Afton Engineering Company owned prior to August of 1964 and was then in their possession?
A. No, sir, once again, I agreed to put up money on any of the large jobs, large pumping units, and have an interest in it.
Q. Well, are you — did you — did Mr. Mayhew agree that he wouldn’t sell any of these large pumps except that Mr. Jordan would be called upon to put up the money for them?
A. No, sir, on pipeline pumps which we could rent, we agreed that I would be on in the deal. I think Mr. Mayhew will say they generally are looking for financing, and this was our deal.
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Q. Did you present to him any customer that wanted to lease one?
A. No, sir, we agreed in this case of jointly-owned, whoever got the deal— in this case he got there first.

When asked with respect to the allegations in his petition that he gave confidential information to appellee concerning the three pumps owned by Brazos Engineering Company, Inc., he was asked also whether those were the only pumps that he had given Mr. Mayhew any confidential information concerning and replied: “No, sir, I discussed other pumps with Mr. May-hew and other parts of pumps.”

Q. I am talking about confidential information, Mr. Jordan.
A. I agreed that possibly confidential is the wrong term to use there.

He was then asked what was the nature of the information that he had given that was not available to other people, and he stated that it was available to people who know the business, and that very few people had looked at the pumps and talked to Brazos about them, and that he was not saying any information they got by such means was confidential information, or different from information that he had if they understood the equipment. He was then asked as to the conversation he had with Mr. Mayhew before he departed for California in December, 1964, and answered:

“I believe that I called Mr. Mayhew several days before I left, possibly the day before I left, to let him know how he could get in touch with me in San Francisco, the gist has been told, we had several deals working, one with International and one with Mac Wood and if he needed any money or anything else, to facilitate him getting hold of me so there would be no holdup on any customers we might have.”

Q. Did he accept your offer?
A. Obviously he did not or we wouldn’t be in this office.
Q. Never called you or called upon you for any monies?
A. No, sir.

Later he testified, when asked whether in the discussions he had with Mr. Mayhew there was any discussion concerning how the title to the equipment would be taken or in whose name it would be taken or how it would be handled, “I trusted Mr. Mayhew and his verbal agreement at the time was fine with me, it could have stayed in the Afton title or under a joint venture agreement.”

Q. Was there any agreement between you?
A. It was agreed between us it would be a partnership.
Q. Was the term “partners” ever used?
A. No, sir, it would be a formal term never used.
We quote the following pertinent testimony :
Q. Any matter he might do in furtherance of this matter you talked to him about, you had some right to make determination of whether you would put up money or not ?
A. Yes, sir.
Q. You reserved that right to yourself?
A. I suppose so.
Q. You know you did?
A. Sure.

He also testified:

A. Anything he wanted to do I agreed he could go ahead and do it as long as I was included in the thing.
Q. Did you have any right to approve it?
A. Yes, sir, I did because he told me he would honor and approve all these arrangements on the equipment sitting over there.
Q. I am asking if you, as I understand, reserved to yourself a right to determine for yourself — whether or not you would put any money into any request he might make?
A. Yes, sir, he would call me and say 'Do you want to do this.’ He did just the opposite, he went and violated the deal without even discussing it.

In his affidavit appellant stated that Afton was short of money; that at the luncheon in about August he and Mr. May-hew discussed business in general terms and specifically multi-stage centrifugal pumping units, and that appellant offered to put up half the money to repair the pumps; that Mr. Mayhew said he liked this arrangement * * * “and that we should go into together but that we would have to adjust Afton’s owning the pumps.” Appellant also stated that he was familiar with the pumps; that he had spent approximately six months with Brazos’ pumping division, as manager, and that he knew there were four pumps located there; and that he thought they could get them for about $8,000.00 and that he could arrange good terms with Brazos; that Mayhew then wanted to know where they would try to sell these first pumps and that appellant told him that he had made some contacts while with Brazos, and that he was only interested in large multi-stage pumping units, and that if Afton was short of money he had approximately $35,000.00 to $45,000.00 cash available in various savings and checking accounts that he could get his hands on. He then said in his affidavit:

“In addition to sharing the costs of purchasing such large pumping units and repairing them it was agreed between Mr. Mayhew and myself that since I was primarily in the used-machmery business and had many contacts to learn where this equipment was coming up for surplus sale, that I would primarily try to find the equipment and use my card file to get in touch with prospective purchasers, and that Afton would store the equipment on their lot and use their shop facilities to renovate such equipment and put it in condition so that it could be resold or leased. We then shook hands on the deal and it was agreed on the drive back from luncheon that sometime in the next few weeks Mayhew would send John Bergner, an employee of Afton, to my office to go over my plan of locating such pumps and to draw up advertising material to merchandise the equipment.
“As I understood my relationship with Afton, we would each use our best abilities to buy, repair, and sell or lease large multistage centrifugal pumping units. I was to put half of the money and to do everything possible to locate such pumps, to use my contacts, to check the various trade journals, and to draw up and mail circulars to persons in my card file whose companies I felt would be interested in such large pumping units.”

It is our view that appellant raised a fact issue as to there being an agreement between him and appellee to enter into a joint enterprise or venture to purchase and repair large multi-stage centrifugal pumping units for sale or lease, with each party putting up one-half of the cost and sharing equally in any profits realized with the option in appellant to accept or reject any specific proposition submitted to him by appellee. It is true that appellant’s testimony is redundant and sometimes possibly contradictory, but in considering the same in the light most favorable to him and resolving all doubts in his favor and against the movant, as we are required to do, we are of the opinion that there is some evidence of probative force which raised a fact issue. If we are correct in so holding, then it would follow as a matter of law that the parties would stand in a fiduciary relation within the scope of the enterprise and each would be obligated to exercise the utmost good faith in all endeavors relating to their common interests. Neither could lawfully obtain for himself or itself any secret profit or advantage in carrying on the common enterprise. Griffin v. Reilly, Tex.Civ.App., 275 S.W. 242; Fitz-Gerald v. Hull, 1951, 150 Tex. 39, 237 S.W.2d 256. See also 30 Amer.Jur., pp. 974-975, Joint Adventures, Sec. 48.

In the instant case, the evidence is undisputed that appellee leased ten pumps to Humble without first consulting appellant or giving appellant an opportunity to exercise his option to participate in the deal, and that no accounting has been made to appellant. It is our view that appellant has raised a fact issue as to whether a constructive trust existed as to some or all of the ten units leased to Humble by appellee. The burden was upon appellee to demonstrate that there was no genuine issue of material fact. This it has failed to do. Our Supreme Court, in the recent case of Gaines v. Hamman, 1962, 163 Tex. 618, 358 S.W.2d 557, said:

“The important circumstance from which the law will raise a constructive trust is the breach of a confidential relationship which may exist, although such relationship may not meet the technical requirements of a partnership or joint venture. Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985.”

The Court also said:

“If conflicting inferences may be drawn from the deposition and from the affidavit of the same party, a fact issue is presented. United States Fidelity & Guaranty Co. v. Carr, Tex.Civ.App., 242 S.W.2d 224, wr. ref., New St. Anthony Hotel Co. v. Pryor, Tex.Civ.App., 132 S.W.2d 620, wr. ref. It is not the purpose of the summary judgment rule to provide either a trial by deposition or a trial by affidavit, but rather to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine issue of fact.”

We are of the opinion that the present record does not disclose a case for summary judgment. Fitz-Gerald v. Hull, supra; Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401. Appellant has included in his cause of action a claim against Humble. There has been no severance of such claim and no trial which would warrant affirming the trial court’s judgment as to Humble as requested by Humble in its argument before this Court.

Reversed and remanded.


text:
    Leroy H. LUCKEY by Next Friend L. H. Luckey, Appellant, v. Charles K. ADAMS et al., Appellees.
    No. 181.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 16, 1965.
    Robert C. Cox, Erhard, Cox & Ruebel, Dallas, for appellant.
    Fred- T. Porter, Leachman, Gardere, Akin, Porter & DeHay, Dallas, for appel-lees.
   SELLERS, Justice.

This is an appeal from a summary judgment. Leroy H. Luckey, appellant, brought this suit against Charles K. Adams, d/b/a Custom Automotive, appellee, in the 162nd District Court of Dallas County.

The suit is the result of an automobile accident which occurred September 23, 1956, at which time the appellant was 19 years of age. The petition of appellant alleges that, while said appellant was operating a “dragster” owned by appellee in a timed speed trial on a race track in San Antonio, the accelerator “hung” and would not release. Damages were sought against appellee on the basis that he was negligent in knowingly furnishing for appellant’s use a vehicle containing a defective accelerator shaft.

By an amended pleading on June 8, 1964, another ground of recovery was alleged in that appellee was charged with negligently permitting appellant to operate the dragster without giving adequate instructions to appellant who was known to be an inexperienced driver. The appellee moved to strike the second cause of action on the ground that the same was barred by the two-year statute of limitation. This motion was overruled by the trial court.

The appellee, in his amended answer, plead as special defenses that the collision in question was proximately caused by acts and/or omissions upon the part of the appellant, that appellant assumed the risk in driving the dragster, and that the accident in question was unavoidable.

Appellee filed its motion for summary judgment based upon the pleadings and depositions on file. This motion was not controverted by affidavits or other reply by appellant. The motion of appellee for summary judgment was granted, from which ruling the appellant has duly prosecuted this appeal.

The depositions on file which are material on this appeal are those of appellant and appellee; and from a review of both depositions we gather the following undisputed facts:

The deposition testimony of appellant shows that appellant became interested in "drag racing, hot rods, dragsters, and things of that kind when he was between the ages of 14 and IS years.” Appellant actually began to race stock cars as early as 1953, racing said vehicles as high as 75 miles per hour on drag strips in many locations. Subsequently, appellant acquired a 1954 Olds which was converted so that it would operate at higher speeds, and appellant raced this automobile for two years until he acquired a 1934 Ford roadster, which also was converted to operate at higher speeds. This roadster was a specialized racing machine; it was not registered as a motor vehicle and driven on the public highways, but was towed from place to place and entered in racing events. During the latter part of 1955 and 1956 appellant raced this Ford roadster on tracks in Texas and Louisiana obtaining a speed of 99.99 miles an hour at one racing strip. In the latter part of 1956, the engine from the 1934 Ford roadster was removed and placed in a 1932 Ford roadster belonging to appellee, which roadster was again driven by appellant at high speeds ranging from 105 miles per hour up to a maximum of 116.78 miles per hour. After engaging in numerous racing events, both in and out of the State of Texas, and after winning an event at Waco, Texas, with a clocked speed of 104 miles per hour, appellant and his family took the roadster to the National Championship Races in Kansas City, Missouri. At the Kansas City Championship Races, appellant won his class and was given a trophy for attaining a speed of 113.77 miles per hour. In addition to actual racing experience, appellant admitted in his deposition that because of his career in racing, he had learned a lot about the mechanics of racing cars, and was a pretty fair mechanic himself because of the work that he had done on these type vehicles.

Appellee was also at the above described Kansas City event and took with him the dragster which was involved in the collision made the basis of appellant’s suit. It was during this time that appellant first saw the dragster operated. Appellant and appellee subsequently went together to the regional championship races in San Antonio, where appellant for the first time actually drove the dragster.

From his deposition testimony, appellant remembered nothing at all about the details of the accident in which he was injured. He remembers only that on the morning in question, he checked in as the driver of the dragster, and that the dragster was checked by the inspectors at the racing event for safety. Appellant himself, however does not even remember getting into the dragster prior to the run which ended with the collision.

In appellee’s deposition, appellee confirmed from his knowledge the prior racing experience of appellant as above described, particularly with reference to the National Championship trials in Kansas City. Appellee testified that he had seen the appellant drive many times in racing events, and that he was confident of appellant’s ability to drive racing vehicleá. With reference to the condition of the dragster, appellee testified that the dragster had been raced a number of times prior to the date of appellant’s accident, and that at no time had there been any complaint of any defect. Appellee himself had personally checked the linkage for clearance, and stated his opinion that he knew no reason why the engine would not shut off on the occasion of the accident. The linkage in the dragster was the same as that at the time the dragster was raced in the Kansas City Championship event, and it had not been raced subsequent to that event except on the occasion in San Antonio when appellant was injured. Also, appellee testified that the vehicle had been carefully checked over or all safety features by one of appel-lees’ employees. A further check just prior to the accident had been made by the officials in charge of the racing event in San Antonio. In particular, the throttle linkages were checked and were found to be in safe condition by those racing officials.

Appellee did testify about the facts surrounding the accident in question. Appel-lee testified that appellant first drove the roadster down and through the course at a slow speed to warm up the oil. Appellee testified that later in the day appellant asked to drive the dragster so as to feel it out, and he was told to drive it on a warmup road but to take it easy. It was on this occasion that the appellant started out at a rate of speed faster than appellee had expected him to drive, but appellee still thought nothing about it and had looked away briefly when someone hollered that the car was not stopping. When appellee looked around again he saw a cloud of dust at the far end of the racing strip (about j/2 mile away) which he later discovered had been caused when the vehicle catapulted over a stone curbing and rolled over several times.

Appellant in his brief sets out the following questions which he says were for the jury under the deposition evidence of appellant:

“Did the Appellee request the Appellant’s son to drive the subject ‘dragster’ ?
“Did the Appellee know that Appellant’s son had never driven a vehicle like the subject ‘dragster’ before?
“Did the Appellee give any instruction or teaching in the method of driving the subject ‘dragster’?”

If it can be said that these issues were raised by the evidence, it would seem that they fail to show that the trial court was in error in granting the summary judgment.

The burden was upon the appellant to show that the court was in error in granting the summary judgment where there was an ultimate and controlling issue that should have been submitted to the jury. Rule 166-A, Texas Rules of Civil Procedure.

Apparently there was no examination of the wrecked dragster to determine what was wrong with the mechanical parts that could have caused the collision. If the evidence was sufficient to show that appel-lee failed to instruct the appellant how to drive the dragster, should it then be presumed that the wreck was brought about by such failure ? We think not. The evidence must raise the issue that the collision was the proximate causé of the failure to give such instructions. The rule is stated in Vol. 40, Tex.Jur.2d, page 691:

“Where the cause of the catastrophe is left by the evidence to conjecture or speculation, a judgment in favor of the plaintiff is not sustainable. Although it is the jury’s exclusive function to determine the credibility of the witnesses and the weight or probative force to be attached to their testimony a jury may not arbitrarily find negligence when there is no proof of any. If the evidence leaves it equally probable as to whether the calamity was caused by the act of the defendant or by some other force or instrumentality, there can be no recovery. No liability is shown where an injurious occurrence is as reasonably attributable to a nonactionable cause as to one that is actionable. * * * ”

We do not want to be understood as holding that there was a duty on appel-lee to instruct appellant in the driving of the dragster. Appellant under this record was an experienced driver of racing cars. If there was a difference in the operation of the dragster and his own car, the evidence does not point out the difference. The appellant was engaged in a very dangerous business of driving racing cars. This is evidenced from the case of Kuemmel v. Vradenburg, Tex.Civ.App., 239 S.W.2d 869.

Arising in San Antonio where the suit was for damages to a child in attendance at one of these races, and where the negligence alleged was that the management had not built a sufficient fence to protect the child from what could be expected to happen at one of these races, the court quoted from the case of Arnold v. State, 163 App.Div. 253, 148 N.Y.S. 479, 483, as follows:

“ ‘Reasonable care required special construction to provide for the safety of those invited by the state to a place of public entertainment provided by itself. * * *
“ ‘If a race cannot be held without inherent and extreme risk to life and limb, the command of the law is that it must not be held at all.
‘“[T]he greatest and most obvious source of danger from a nonprotected track was not guarded against except by a flimsy fence, which could not resist a powerful car, with tremendous momentum, in case it left the track, as the commissioners knew or should have known was liable and even likely to happen. * * *
“ T hold the state liable for holding or permitting to be held on its own ground, under the circumstances disclosed by the evidence, such a fast race, with powerful cars, on an unprotected track, without the exercise of reasonable care to provide against accidents well known to be likely to happen.’ ”

A much stronger case on the facts is Walker v. Yellow Belly Drag Strip, Tex.Civ.App., 351 S.W.2d 353. It was held there that the driver of another’s car under the circumstances was guilty of contributory negligence, and we so hold that appellant assumed the risk and was guilty of contributory negligence as a matter of law. The fact that the appellant at the time was a minor does not protect him from the law of contributory negligence. Sargent v. Williams, 152 Tex. 314, 258 S.W.2d 787.

There was not the slightest evidence in the depositions to the effect that there was anything mechanically wrong with the dragster at the time it was turned over to appellant for a warmup on the track. The dragster had been raced several times before without trouble. It had been raced the week before and immediately before the collision had been examined by a committee of the race track to see that it was in proper condition for racing. These facts would negative any mechanical defects in the dragster at the time of the collision.

Appellant points out that the dragster contained parts taken from an airplane and used alcohol for fuel. The record discloses that these so-called racing cars are the product of various parts of different make cars being combined in a racer for the very purpose of speed. Such was done by appellant in his own car. Apparently they were so built that they could not be registered by the state for use on the highway. The operation of such cars is not controlled by our state statutes.

The judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    Gloria SHAW, as next Friend for Kenneth Shaw, Appellant, v. Leon B. NULL, Appellee.
    No. 16689.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 17, 1965.
    D. C. Gandy, Fort Worth, for appellant.
    Brown, Day & Crowley and George A. Crowley, Fort Worth, for appellee.
   RENFRO, Justice.

Suit was brought by Gloria Shaw, next friend for Kenneth Shaw, a minor, against Leon B. Null for personal injuries sustained by Kenneth as a result of an automobile-pedestrian collision.

In answer to special issues the jury found (1) defendant did not fail to keep a proper lookout; (3) was not driving at a greater rate of speed than a reasonably prudent person would have driven; (6) defendant’s failure to turn to his right was not negligence.

Points of error are based on plaintiff’s contentions that the above answers “are contrary to the law and the evidence”, and are against the overwhelming weight and preponderance of the evidence.

On the occasion in question defendant and his wife were driving south on Beach Street in proper traffic lane at a speed of 25 or 30 miles per hour. The legal speed limit was 30 miles per hour. The time was about 8:00 P.M. on August 10, 1963. The night was dark. There were vacant lots on the west side of the street and a cemetery on the east side. There were no street lights or other lights to illuminate the vicinity. The nearest house was a block away. Defendant’s car was in good mechanical condition with good brakes, lights and a clear windshield. Defendant was under the impression he met a car traveling in the opposite direction. Just as the other car passed, defendant first saw the three year old child Kenneth “right in front of my headlights”, and in the same lane of traffic as was defendant. At all times defendant was looking straight ahead. As soon as he saw the child he put the brakes on “hard as I could get them on.” Defendant testified he had time to do nothing but apply the brakes. The car had almost stopped when it hit the boy. Further evidence showed the boy was struck “inside” the left headlight of defendant’s car. Defendant traveled on Beach Street often. He had seen children playing on or adjacent to the street in daytime, but never at night. Defendant’s wife testified she, too, was looking straight ahead and did not see Kenneth until just before the impact.

The jury is not only the judges of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it. 24 Tex.Jur.2d 357, § 705.

It was within the province of the jury, under the facts in this case, to determine whether defendant was guilty of the negligence charged against him. We have no doubt there was ample evidence of probative value to support the “no negligence” findings, and, in view of the whole record, such findings were not against the great weight and preponderance of the evidence.

Plaintiff also contends the answer “None” to the damages issue is against the great preponderance of the evidence.

We agree.

There is nothing in the record, however, to suggest that the jury’s answer to the issue was motivated by prejudice, passion or other improper influence. In view of the findings which exonerated defendant of negligence, the answer to the damages issue became immaterial. Pederson v. Scott, 366 S.W.2d 260 (Fort Worth Civ.App., 1963, ref., n. r. e.); Wilkinson v. Chambers, 205 S.W.2d 639 (Amarillo Civ.App., 1947, no writ hist.).

The jury found the accident to be unavoidable. Plaintiff objected to the submission of said issue. The issue was properly submitted. The child, because of his age, could not, as a matter of law, have been guilty of negligence. The evidence was such that the jury could, as it did, find that defendant was not negligent, thus the accident was one which was not caused by any negligence on the part of either party.

Plaintiff contends issues on sudden emergency, also answered favorably to defendant, should not have been submitted to the jury.

We find it unnecessary to determine whether the issues were properly in the case. There is no showing that submission of the issues resulted in probable prejudice to plaintiff.

Judgment affirmed.