author: WALTER, Justice.

text:
    James C. SHEPHERD, Appellant, v. EAGLE LINCOLN MERCURY, INC., Appellee.
    No. 4886.
    Court of Civil Appeals of Texas, Eastland.
    April 1, 1976.
    Ronald G. McDearman and Carl E. Roberts, McDearman, Lair, Balias & Sands, Dallas, for appellant.
    Seferino Dominguez, Blassingame, Os-burn & Dominguez, Dallas, for appellee.
   WALTER, Justice.

James C. Shepherd filed suit against Eagle Lincoln-Mercury, Inc., for damages for not correctly disclosing the mileage on the odometer of a used 1972 Lincoln Continental. Judgment was rendered non obstante veredicto for defendant and plaintiff has appealed. He contends the court erred in rendering judgment for the defendant because there is some probative evidence to support the verdict.

The jury found Eagle misrepresented the mileage on the car; that such misrepresentation was a material and substantial fact; that plaintiff relied on such misrepresentation; that plaintiff suffered a monetary loss; that the amount of such loss was $2,250.00; that Eagle executed a disclosure form indicating mileage on the car of 8,280; and, that the car had more miles than indicated on the disclosure form.

We find appellant’s statement of the facts accurate. He relates them as follows:

“This is a general fact statement pertinent to all points, giving the background of the transaction made the basis of this suit and the jury findings. Because the facts appear to be undisputed, they will be set out in one narrative.
The basis of this suit is a consumer transaction in which James C. Shepherd is the buyer and Eagle Lincoln-Mercury, Inc. is the seller of a 1972 Lincoln Continental Mark IV automobile. On June 7, 1973, Plaintiff went to the Defendant’s place of business and was shown the automobile in question. The Plaintiff decided to buy the car and entered into an installment sales contract with Defendant for the installment price of $9,559.24. At the time of purchase Plaintiff was given an odometer disclosure statement by an agent of the defendant which showed the make, model, and year of the vehicle as well as stating that the car’s true mileage was 8,280 miles.
Within two months of this purchase by plaintiff, major repairs were required by the automobile. Mr. Shepherd then wrote to Ford Motor Company inquiring into the history of the car and received a reply from the Ford Company which stated that on May 8, 1972, warranty repair work had been done on the Lincoln and that the mileage at that time had been recorded as 10,100 miles. Subsequently, the plaintiff returned the car to the defendant’s place of business.
The defendant had purchased the Lincoln Continental Mark IY from Bob Queen Used Cars, Haskell, Oklahoma and had received an odometer disclosure statement from Queen which stated that the Lincoln had accumulated 8,226 miles. The defendant’s used car manager stated that he had been in the automobile business for approximately twelve years and that he had personally inspected the Lincoln carefully and authorized its purchase from Queen. He also stated that he had never done business with Bob Queen Used Cars before this time.”
15 United States Code Annotated,
“SUBCHAPTER IV.— ODOMETER REQUIREMENTS
§ 1981. Congressional findings and declaration of purpose
The Congress hereby finds that purchasers, when buying motor vehicles, rely heavily on the odometer reading as an index of the condition and value of such vehicle; that purchasers are entitled to rely on the odometer reading as an accurate reflection of the mileage actually traveled by the vehicle; that an accurate indication of the mileage traveled by a motor vehicle assists the purchaser in determining its safety and reliability; and that motor vehicles move in the current of interstate and foreign commerce or affect such commerce. It is therefore the purpose of this subchapter to prohibit tampering with odometers on motor vehicles and to establish certain safeguards for the protection of purchasers with respect to the sale of motor vehicles having altered or reset odometers.
§ 1982. Definitions
As used in this subchapter—
(1) The term ‘odometer’ means an instrument for measuring and recording the actual distance a motor vehicle travels while in operation; but shall not include any auxiliary odometer designed to be reset by the operator of the motor vehicle for the purpose of recording mileage on trips.
(2) The term ‘repair and replacement’ means to restore to a sound working condition by replacing the odometer or any part thereof or by correcting what is inoperative.
(8) The term ‘transfer’ means to change ownership by purchase, gift, or any other means.
§ 1983. Unlawful devices causing odometer to register mileage other than true mileage driven
It is unlawful for any person to advertise for sale, to sell, to use, or to install or to have installed, any device which causes an odometer to register any mileage other than the true mileage driven. For purposes of this section, the true mileage driven is that mileage driven by the vehicle as registered by the odometer within the manufacturer’s designed tolerance.
§ 1984. Unlawful change of mileage indicated on odometer
It is unlawful for any person or his agent to disconnect, reset, or alter the odometer of any motor vehicle with the intent to change the number of miles indicated thereon.
§ 1988. Disclosure requirements upon transfer of ownership of motor vehicle; promulgation of rules; violations
(a) Not later than 90 days after October 20,1972, the Secretary shall prescribe rules requiring any transferor to give the following written disclosure to the transferee in connection with the transfer of ownership of a motor vehicle:
(1) Disclosure of the cumulative mileage registered on the odometer.
(2) Disclosure that the actual mileage is unknown, if the odometer reading is known to the transferor to be different from the number of miles the vehicle has actually traveled.
Such rules shall prescribe the manner in which information shall be disclosed under this section and in which such information shall be retained.
(b) It shall be a violation of this section for any transferor to violate any rules under this section or to knowingly give a false statement to a transferee in making any disclosure required by such rules.
§ 1989. Civil actions to enforce liability for violations of odometer requirements; amount of damages; jurisdiction; period of limitation
(a) Any person who, with intent to defraud, violates any requirement imposed under this subchapter shall be liable in an amount equal to the sum of—
(1) three times the amount of actual damages sustained or $1,500, whichever is the greater; and
(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court.
(b) An action to enforce any liability created under subsection (a) of this section, may be brought in a United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within two years from the date on which the liability arises.”

Texas Business and Commerce Code Annotated, § 17.41-17.45:

“§ 17.41. Short Title
This subchapter may be cited as the Deceptive Trade Practices-Consumer Protection Act.
§ 17.44. Construction and Application
This subchapter shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.
§ 17.45. Definitions
(9) ‘Knowingly’ means actual awareness of the falsity or deception, but actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.
§ 17.46. Deceptive Trade Practices Unlawful
(a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
(b) The term ‘false, misleading, or deceptive acts or practices’ includes, but is not limited to, the following acts:
(16) disconnecting, turning back, or resetting the odometer of any motor vehicle so as to reduce the number of miles indicated on the odometer gauge;
(c) It is the intent of the legislature that in construing Subsection (a) of this section the courts to the extent possible will be guided by Subsection (b) of this section and the interpretations given by the Federal Trade Commission and federal courts to Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C.A. 45(a)(1)).”

Shepherd pleaded he purchased the car from Eagle and was delivered a disclosure form showing 8,280 miles on the odometer and the car had more miles than the disclosure form indicated.

He pleaded Eagle altered or caused the odometer to be altered.

In the alternative he pleaded Eagle turned back the mileage on the odometer and it should have known it did not indicate the correct mileage; that Eagle misrepresented this material and substantial fact to deceive and induce him to purchase the car; that he would not have purchased the car had he known the true mileage and that such fraudulent representations were calculated to deceive him and he suffered damages.

Eagle purchased the car from Bob Queen Used Cars, Haskell, Oklahoma and the disclosure statement from Queen disclosed 8,226 miles. The disclosure statement from Eagle to Shepherd showed 8,280 miles. These facts are not disputed. These facts present no evidence Eagle violated any of the provisions of the Federal Statute.

Appellant relied on Delay v. Hearn Ford, 373 F.Supp. 791 (U.S.Dist. Court 1974). Delay traded a 1967 Chevrolet in on a 1973 Ford on December 23, 1972. He was not satisfied with his Ford and Hearn Ford replaced it with a second new Ford which also proved unsatisfactory. He sold the second Ford to Jones, the used car manager at Hearn Ford and on January 19, 1973, repurchased the same 1967 Chevrolet which he had traded in originally. Soon thereafter, Delay discovered the odometer read less than 49,000 miles. There was evidence that at the time Delay traded his Chevrolet to Hearn Ford his odometer read at least 65,-000 miles. The defendant’s motion for summary judgment was denied because the summary judgment proof created issues of fact.

The Delay case is distinguished from the case at bar because Hearn Ford had possession of the 1967 Chevrolet from the time Delay traded it to them until Delay repurchased the car.

There is no evidence to support a judgment that Eagle altered or caused the odometer to be altered under the State statute and these issues were not submitted.

Shepherd relied on his alternate pleading of actionable fraud. The jury found Eagle misrepresented the mileage, this was a material fact, that Shepherd relied on same and suffered damages.

In Oilwell Division, United States Steel Corporation v. Fryer, 493 S.W.2d 487 (Tex.1973), the court said:

“. . . While generally speaking, to establish fraud there must be a finding of a false representation (which we do not have here under the jury’s findings), our opinion need be based, as it is based, only on the negative answer to special issue number 3 where the jury answered ‘no’ to the question, ‘Do you find that the representation was made for the purpose of inducing Fryer to sign the guaranty agreement?’ That is not an immaterial finding but is one of the necessary elements of fraud as set out in Wilson v. Jones, 45 S.W.2d 572 (Tex.Com.App.1932). That opinion states at page 573:
‘The authorities announce the general rule that to constitute actionable fraud it must appear: (1) That a material representation was made; (2) that it was false; (3) that, when the speaker made it, he knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by the party; (5) that the party acted in reliance upon it; and (6) that he thereby suffered injury. . . . Each of these elements must be established, . and the absence of any one of them will prevent a recovery.’ ”

Appellant does not have findings on all of the elements of actionable fraud.

We have examined all points of error and find no merit in them.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    Robert L. CEARLEY, Appellant, v. Shirley CEARLEY, Appellee.
    No. 12385.
    Court of Civil Appeals of Texas, Austin.
    April 7, 1976.
    Rehearing Denied April 28, 1976.
    Michelle Bolton, Bolton & Bolton, Cedar Park, for appellant.

      Terry L. Belt, Mitchell, George & Belt, Austin, for appellee.
   O’QUINN, Justice.

In district court Shirley Cearley, appellee, by original petition, and Robert L. Cearley, now appellant, by cross-action, sought divorce from the other party and division of property belonging to the parties. After trial before the court without a jury, the court granted Shirley Cearley a divorce and made division of the property. Robert L. Cearley has appealed from that portion only of the decree purporting to effect division of the property.

Appellant brings three points of error, under which his foremost contention attacks the trial court’s award to the wife of a substantial interest in the husband’s military retirement benefits “if and when” received by appellant.

We will reverse the trial court’s judgment with respect to award of retirement benefits, and will render judgment that the court was without authority to order division of prospective retirement benefits not vested in the parties on the date of judgment.

The parties were married first on November 21, 1951, and that marriage terminated with divorce in March of 1955. Thereafter, on May 7, 1956, appellant enlisted in the United States Air Force, and the parties remarried in March of 1957. At the time the final judgment was entered in these proceedings, on June 3, 1975, appellant had attained the rank of Master Sergeant and had served approximately 227 months in the Air Force, 217 months of which appellant was married to appellee. Appellant will complete twenty years of service on May 7, 1976, and his present enlistment extends until August 31, 1976.

The trial court, by judgment entered June 3, 1975, ordered that “If and when Robert L. Cearley . . . retires and receives a retirement benefit then, and in such event, the Petitioner [ap-pellee] is to receive one-half (½) of 18 of the fraction of the number of years of active service until retirement . . . ” At the time of judgment appellant had completed about nineteen years of service, or about one year less than the minimum of twenty years required to become eligible to apply for retirement pay.

In an earlier case, involving the prospective military retirement benefits of an officer in the United States Army, this Court held that the trial court was without authority to divide future retirement benefits not yet earned and therefore not vested at the time of the divorce judgment. Lumpkins v. Lumpkins, 519 S.W.2d 491 (Tex.Civ.App. Austin 1975, writ ref. n. r. e.). Recently the San Antonio Court of Civil Appeals affirmed the action of a trial court in holding that it was without power to award the wife an interest in the future military benefits of the husband who as an officer in the United States Air Force had completed sixteen years and four months of the twenty years of service required before being eligible to apply for retirement pay. Bright v. Bright, 531 S.W.2d 440 (Tex.Civ.App. San Antonio 1975, no writ).

Appellee argues that the rule applied in Lumpkins and Bright, involving prospective retirement pay of officers, is not controlling where, as in this case, the future military retirement benefits are those of an enlisted man, and in this contention appellee relies on the holding in Miser v. Miser, 475 S.W.2d 597 (Tex.Civ.App. Dallas 1971, writ dism’d). In Miser, and later in a case involving future retirement benefits of an officer, the appellate court distinguished between officers and enlisted personnel on the basis of their respective obligations to the service. See Davis v. Davis, 495 S.W.2d 607 (Tex.Civ.App. Dallas 1973, writ dism’d).

In Miser the court held that, because the enlisted man had contracted to serve for more than enough time to complete the requisite twenty years, the benefits had accrued so as to validate the trial court’s action in making a division of such benefits if, when, and as paid in the future. (See Davis, 495 S.W.2d 614, col. 1). In Davis the court distinguished an officer’s retirement from that of an enlisted man in this language: “An enlisted man, as distinguished from an officer, would be obligated by law to complete his term of enlistment and the retirement benefits could be defeated only by dishonorable discharge or death. In the case of an officer . . . the serviceman may resign at any time and such resignation prior to the completion of the number of required years would effectively preclude the payment of military retirement benefits.” (495 S.W.2d 614)

The statutes under which members of the United States armed forces may earn retired pay for length of service appear to be substantially uniform in prescribing the events which must occur before a claim for retirement benefits accrue. 10 U.S.C.A. ch. 67 (Non-Regular Service), ch. 367 (Army), ch. 571 (Navy and Marine Corps), ch. 867 (Air Force). The uniform minimum length of creditable service for officers and enlisted personnel is twenty years, and all personnel of all armed forces are required, after completion of the requisite years of service, to apply to the appropriate authority for retirement benefits, which become payable only upon official receipt of credit for twenty years of satisfactory service. Retired pay thereafter is based upon rates fixed by computation tables prescribed by statute for officers and enlisted personnel alike.

Retirement pay for military service is not regarded by the United States courts as a grant, gratuity, or a pension, but has been declared to be a benefit which the serviceman earns by completing the years of creditable service prescribed. Berkey v. United States, 361 F.2d 983, 176 Ct.Cl. 1 (1966). The obligation of the United States to pay retirement benefits, however, accrues only when all events have occurred which fix the liability of the government. The conditions must be such as would entitle the claimant to institute an action, if necessary, for a money judgment. The rule is applied equally to obligations arising under contract, Oceanic S. S. Co. v. United States, 165 Ct.Cl. 217 (1964), and by statute, Sauer v. United States, 354 F.2d 302, 173 Ct.Cl. 642 (1965). No vested or contractual right to retired pay exists with respect to service in the armed forces, and payment of such benefits depends upon a statutory right, not upon common law rules governing private contracts. Goodley v. United States, 441 F.2d 1175, 194 Ct.Cl. 829 (1971).

The right of the serviceman to sue for retirement benefits has not accrued, and will not accrue, until he actually serves the requisite number of years and has obtained receipt of credit for not less than twenty years of creditable service. This rule has been applied equally to enlisted and officer personnel. Kirby v. United States, 201 Ct.Cl. 527 (1973) (Air Force master sergeant); Montilla v. United States, 457 F.2d 978, 198 Ct.Cl. 48 (1972) (Army officer). Until all events have happened, necessary to establish a claim for money presently due, a claim for retired pay is not mature and the United States Court of Claims will not entertain an action to enforce payment. See order of dismissal, 205 Ct.Cl. 879, 880 (1974); United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969).

It is plain that administrative authorities and the federal courts, applying or construing the statutes, uniformly make no distinction between officers and enlisted personnel with respect to the nature of retirement benefits and the time and manner in which the right to retired pay becomes an obligation of the United States. The fact that an enlisted person by contract may be obligated to remain in the service beyond the requisite twenty years is not a basis for holding that, prior to completion of the years of creditable service prescribed by law, his retirement benefits may be acquired by him within the meaning of the Texas statute defining community property as property . . other than separate property, acquired by either spouse during marriage.” (Emphasis added) Art. 5.01, Texas Family Code (1975).

At the time the trial court entered judgment in June of 1975 appellant had completed approximately nineteen years and twenty-seven days of service. Until appellant completes twenty years of service, on or about May 7, 1976, and has applied for retirement and obtained confirmation that his years of service constitute at least twenty years of satisfactory service, he has not and cannot acquire the right to retired pay. Before the benefits have accrued under the statutes creating the right to earn retired pay, appellant cannot acquire the benefits as property within the meaning of the Family Code. Appellant’s contract to remain in the service until August 31, 1976, nearly four months beyond the end of twenty years, cannot alter the statutory requirements to hasten maturity of any prospective right to retired pay. Appellant’s benefits under the federal laws will not be acquired until the minimum service has been completed and all events fixing government liability have occurred in compliance with statutory requirements.

We hold that the trial court was without authority to order division of appellant’s prospective military retirement benefits because no vested interest had been acquired at the time of judgment in the retirement benefits.

Appellant’s point of error one is sustained, and judgment will be rendered that the trial court was without authority to order division of appellant’s prospective military benefits.

Under points two and three appellant urges error in awarding certain personal property to appellee and that the trial court abused its discretion generally in favoring appellee “when dividing the parties’ estate.” We overrule these points.

Complaint is made that a “Troy tiller and the stack of lumber” located at an Austin address should have been awarded to appellant. We find nothing in the record to demonstrate that by awarding these items to appellee an inequitable division of the community estate resulted or that the court abused its discretion in making such award. Further, full review of the record fails to show a division of the community estate in general was so inequitable as to amount to an abuse of discretion.

Appellee by cross point insists that the trial court erred in not ordering appellant to pay attorney’s fees of $5,000 incurred by appellee. The trial court found the fees reasonable and necessary, but ordered “. . . both Petitioner and Respondent to pay their own attorney’s fees.” Appellee prays that the cause be “. remanded with instructions that the Trial Court award Appellee’s attorney’s fees to Appellant.” Appellee concedes that “. allowance of attorney’s fees to the wife in a divorce are [sic ] within the discretion of the Trial Court.” Rampy v. Rampy, 432 S.W.2d 175 (Tex.Civ.App. Houston 14th 1968, no writ). We find that the trial court did not abuse its discretion in failing to order appellant to bear appellee’s cost of attorneys. The cross point is overruled.

Insofar as the trial court ordered division of military retirement benefits the judgment is reversed, and judgment is rendered that such orders be, and the same are hereby, set aside. In all other matters the judgment of the trial court is affirmed.

Affirmed in Part and Reversed and Rendered in Part.


author: McDONALD, Chief Justice.

text:
    CANBERRA INDUSTRIES, INC., Appellant, v. BRANIFF INTERNATIONAL, Appellee.
    No. 5588.
    Court of Civil Appeals of Texas, Waco.
    April 8, 1976.

      Henry Stollenwerck, Dallas, for appellant.
    Touchstone, Bernays & Johnston, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Canberra from summary judgment that it recover from defendant Braniff $51.50.

Canberra sued Braniff alleging that it delivered a Computer Cassette Tape Transport System in perfect condition to defendant in Tulsa, Oklahoma, for shipment to Dallas, Texas; that the Cassette Tape Transport System was delivered in Dallas in a damaged condition, to plaintiff’s damages in the sum of $2,321.89.

Braniff answered that its liability was limited to $51.50 because no value was declared on the Air Bill, thereby limiting its liability to the condition contained under the applicable Tariff and Condition Contract, which was $51.50.

Canberra moved for summary judgment, attaching affidavit of Walter McKay, Jr., who swore that he was an employee of Canberra; that he delivered the Casette Tape Transport System to Braniff in Tulsa, Oklahoma for shipment to Dallas, Texas; that it was in perfect condition; that he paid the freight bill charged by Braniff; that thereafter he picked the Cassette Tape Transport System up from Braniff in Dallas; that it was delivered in damaged condition; such damage amounting to $2,321.89.

Braniff moved for summary judgment that Canberra have judgment for $51.50, attaching the affidavit of its employee Jerry Mills, the Air Bill, and the referenced Tariff (filed with the Civil Aeronautics Board), which showed that no value was declared on the Air Bill by Canberra, and that pursuant to the Tariff, recovery by Canberra is limited to a value of 50 cents per pound, or a total of $51.50. If a value had been declared by Canberra an additional transportation charge of 15 cents for each $100. or fraction of value exceeding 50 cents per pound or $50., would have been made.

The trial court granted Braniff’s motion and rendered judgment for Canberra for $51.50 plus costs.

Canberra appeals on 2 points:

1) The trial court erred in holding that Canberra could not recover all of its damages.
2) The trial court erred in granting summary judgment because Braniff did not prove that the provisions of the Tariff were applicable.

The Air Bill reflects that Canberra shipped the Computer System, weight 103 pounds to itself from Tulsa, Oklahoma to Dallas, Texas. It reflects no declared value. The Tariff (Transportation charges) provides a shipment shall have a declared value of 50 cents per pound (but not less than $50), unless a higher value is declared on the Air Bill at time of shipment, in which event an additional transportation charge of 15 cents per $100. value (or fraction thereof) is required.

A carrier engaged in interstate transportation of property by air may not exempt itself from liability for its negligence, but may limit its loss to an amount not greater than a fixed valuation as a factor in determining its transportation rate, and increase the transportation rate as the amount of the property risk increases. Wadel v. American Airlines, Inc., CCA (Dallas) Er. Dismd., Tex.Civ.App., 269 S.W.2d 855. And the Tariff filed by the air carrier with the Civil Aeronautics Board, as recited in the Air Bill, is a part of the contract between the shipper and the carrier. American Airlines, Inc., v. Miller, 168 Tex. 400, 356 S.W.2d 771; Farah Manufacturing Co. Inc., v. Continental Airlines, Inc., Tex.Civ.App., CCA (El Paso) NWH, 524 S.W.2d 815.

Thus a carrier may limit its liability to the value declared by the shipper, or if the shipper does not declare a value, to the terms set forth in the applicable tariff. The summary judgment proof in the record here reflects Braniff’s liability limited to 50 cents per pound or a total of $51.50.

Canberra’s points are overruled.

AFFIRMED.


author: SHANNON, Justice.

text:
    Bernard I. NOVY, Appellant, v. EMPLOYERS CASUALTY COMPANY, Appellee.
    No. 12402.
    Court of Civil Appeals of Texas, Austin.
    April 14, 1976.
    Rehearing Denied May 5, 1976.

      Jay S. Fichtner, Toby L. Gerber, Berman, Fichtner & Mitchell, Dallas, for appellant.
    Damon Ball, Groce, Locke & Hebdon, San Antonio, for appellee.
   SHANNON, Justice.

Appellant, Bernard I. Novy, sued appel-lee, Employers Casualty Company, on its homeowner’s insurance policy in the district court of Travis County. Novy sought a recovery of $18,673.00 for losses suffered from an alleged burglary of his house. After trial to a jury, the district court entered a take nothing judgment. We will affirm that judgment.

Novy pleaded that he purchased a homeowner’s policy from appellee in 1971. By the terms of the policy appellee insured unscheduled personal property in the sum of $8,000.00 and scheduled personal property in the sum of $17,541.00. The risk insured against was loss by theft while such personal property was in Novy’s house.

Novy pleaded further that between February 16 and 17, 1973, someone broke and entered his house and stole personal property which had a value of $25,468.76. Of that sum, Novy alleged that $18,673.00 was covered by the terms of appellee’s policy.

At trial Novy called one witness, himself. He testified that he and his wife left Austin on February 16, 1973. When they returned on February 17, they discovered that the “house had been gone through.” Novy said that drawers in the house had been pulled open and spilled out. He was of the opinion that “just about every room had been ransacked.” Novy attested further that the window by the kitchen table was open and the window had been damaged to the extent that it could not be locked. He noticed that the window screen was cut, and that there were scratches on the window glass. Novy opined that somehow the window had been pried open.

Novy stated that his collection of antique maps, jewelry, radio and electronic sound equipment, and cameras was missing from his house. Novy declared that he had not located or reacquired any of the property taken from his house.

Appellee’s evidence tended to show that there had not been a bona fide burglary and theft.

The court submitted the case to the jury by two special issues. The first special issue was couched in terms of the insurance policy and inquired whether the jury found that any part or all of the items of unscheduled and scheduled personal property was lost by Novy from his house between February 16 and 17, under circumstances when a probability of theft existed. In response to special issue one, the jury answered, “we do not.” Special issue two inquired as to the total cash market value of the unscheduled personal property lost by appellant. In response to that special issue, the jury answered “none.”

As previously written, the court entered judgment that Novy take nothing.

Novy attacks the judgment by a number of points of error and sub-points of error. By point of error two Novy claims that the trial court erred in denying his motion for judgment non obstante veredicto since the answers of the jury “ . were contrary to the overwhelming weight and preponderance of probative, admissible evidence, and there is no competent evidence upon which the jury’s verdict or the court’s judgment could have been predicated . . . ” (Emphasis added). Because a motion for judgment non obstante vere-dicto is not a procedural basis for a “weight and preponderance” point of error, we necessarily treat point of error two as a “no evidence” point. University of Texas: Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 861 (1960), see: Airway Insurance Company v. Hank’s Flite Center, Inc., 534 S.W.2d 878, 19 Tex.Sup.Ct.J. 217 (Tex., 1976).

In the beginning, it should be observed that Novy’s recovery under the insurance policy depended upon the circumstances surrounding the alleged burglary and upon his own testimony. The general rule is that evidence given by an interested witness, even though uncontradicted, presents an issue to be determined by the fact finder. The rule is not without exception, however, and conclusive effect may be given to the testimony of an interested witness provided his testimony is clear, direct and positive and there are no circumstances tending to discredit or impeach the same. Gevinson v. Manhattan Construction Co. of Okla., 449 S.W.2d 458 (Tex.1969), Broussard v. Moon, 431 S.W.2d 534 (Tex.1968), Moss v. Hipp, 387 S.W.2d 656 (Tex.1965). It is our opinion, however, that Novy’s testimony concerning the alleged burglary was neither clear, direct nor positive and there were circumstances tending to discredit or impeach that testimony. The basis for our opinion will be given in later paragraphs.

The point of entry by the alleged burglar was a kitchen window by which there were a table and chairs. One of the investigating police officers, William Whitaker, testified that no one could have come through the window without moving the table and chairs. Whitaker testified further that when he arrived at Novy’s house the table and chairs were situated so close to the window that he would not have been able to sit in the chair without moving out the table. Novy testified that when he and his wife arrived at their house they found the house in total disarray. He and his wife did not move anything, including the table, before the police arrived. Also, the window through which the burglar supposedly made his entrance was in a raised position of no more than three to eight inches.

Officer Whitaker testified that when he arrived Novy appeared to be “fairly calm and relaxed, not very nervous or angry or anything like that.” Officer A1 Hersom described Novy as “cool, calm, and collected.” By the time of the arrival of Whitaker, Novy had already started to compile a list of missing items. At one sitting, on the same afternoon as the discovery of the burglary, Novy was able to complete a list of some eighty-five items.

Within a few days after the alleged burglary, Officer Hersom discovered in a shop in Austin six or seven antique maps which Novy had reported as stolen. Hersom learned that Novy had delivered those maps to the shop to sell on consignment. A short time thereafter, Novy refused to have any further discussions about the burglary with Officer Hersom. Novy’s refusal to discuss the case further was on the advice of counsel.

Officer Hersom testified that in his opinion a burglary did not occur at Novy’s house.

Several times during the course of the trial appellee’s counsel was able to demonstrate to the jury that Novy had been less than candid in his testimony. For example, Novy testified on direct that he had left the employment of Halliburton Company because of a difference of “philosophies.” Appellee’s counsel introduced Novy’s employment record with Halliburton which showed that Novy was fired by Halliburton for the reason that he had lied about his academic credentials in his application for employment and for the reason of his lack of productivity and attitude. Also, on direct examination Novy testified that when he was employed by Halliburton Company in 1969 he was first “put in charge” of Halliburton’s operations in Germany and was later “put in charge” of their operations in Sicily, Italy, and France. On cross-examination it developed that Novy was only a trainee in the laboratory in Germany and that his later work was not managerial, but instead was in the laboratory.

In an attack on Novy’s credibility appel-lee introduced into evidence Novy’s scrofulous history of falsehood and petty crime involving moral turpitude. For example, Novy admitted that the “whole” application for employment with Halliburton Company was false, complete with bogus statements about academic credentials which he did not possess and past employers who did not exist. In 1967 Novy was convicted of aggravated assault on a female; in 1972 he was convicted of theft under five dollars in San Antonio; and in 1973 he was convicted of theft under five dollars in Austin.

The jury is the exclusive judge of the credibility of witnesses and the weight to be attached to their testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951). The jury may believe a witness although he has been contradicted, and, likewise, the jury may believe the testimony of one witness and reject the testimony of other witnesses. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957). Considering the evidence and considering Novy’s past disregard for the truth, we are of the opinion that with justification the jury could have refused to believe any of Novy’s testimony.

We will overrule point of error two since the evidence did not conclusively establish that any part or all of the unscheduled and scheduled personal property was lost by Novy under circumstances when a probability of theft existed.

By points three and four Novy maintains that the district court erred in permitting the insurance company to introduce the criminal records of Daniel Levinson and David Hausman. The partial answer to Novy’s contention is that the district court did not admit into evidence the criminal record of David Levinson.

The district court did admit the criminal record of David Hausman. The district court stated that the criminal record of Hausman was admitted “ . . . for the very limited purpose as it relates to the application for employment of the Plaintiff Novy with Halliburton because this is the name of one of the references he gave on that application and that is the purpose for which it is admitted and no other purpose.” The criminal record showed that Hausman had been convicted of burglary and theft.

The theory of the district court for admitting the evidence must have been that ap-pellee was entitled to impeach Novy by showing that one of the references which he gave in the application for employment was not as stated therein, but instead was a convicted felon.

Before a witness may be impeached by prior inconsistent statements a predicate must first be laid. The predicate consists in asking the witness, on cross-examination, whether he made the alleged contradictory statement. The witness is thereby given the opportunity to deny the statement and prepare to disprove it, or if he admits making it, to explain the statement. 1 McCormick and Ray, Texas Law of Evidence § 692 (2d ed. 1956). When the witness unqualifiedly admits making the statement, further proof should be excluded. 1 McCormick and Ray, Texas Law of Evidence § 695 (2d ed. 1956).

In the employment application, Novy had listed “Dr. D. Hausman” as a personal reference. Dr. Hausman’s occupation was listed as “Research Chemist.” On cross-examination of Novy, appellee’s counsel developed that Hausman was not a “Doctor” and that he was not a “Research Chemist.” In fact, Novy admitted that the employment application was wholly false, and that he “ . . . falsified that application in order to obtain the job.”

We are of the opinion that the court erred in admitting the criminal record of Hausman. In the first place, the fact that Hausman was a convicted felon was not necessarily inconsistent with Novy’s statement in the application that Hausman was a “Doctor” and a “Research Chemist.” More important, after Novy had admitted that the application was wholly false, there was then no basis for impeachment concerning the application.

We are not of the opinion that the error in admitting the criminal record of Haus-man amounted to such a denial of Novy’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Tex.R. Civ.P. 434.

The judgment is affirmed.

Affirmed.


author: JONES, Justice.

text:
    TEXACO, INC., Appellant, v. Josephine STANDARD, Administratrix of Estate of Harvey Standard, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Oct. 31, 1975.
    Rehearing Denied May 28, 1976.
    Robert G. Breetz, Stites, McElwain & Fowler, Louisville, for appellant.
    James T. Robertson, Louisville, for appel-lee.
   JONES, Justice.

A Jefferson Circuit Court jury awarded Josephine Standard, widow and administra-trix of the estate of Harvey Standard, judgment of $200,000 against Texaco for the alleged wrongful death of Harvey Standard. The jury apportioned $50,000 for the conscious pain and suffering of Harvey and $150,000 for the alleged wrongful-death claim.

At the close of the evidence offered by Josephine, Texaco moved for a directed verdict. That motion was overruled. At the conclusion of all of the evidence, Texaco renewed its motion for a directed verdict. That motion was also overruled. Final judgment awarding the $200,000 to Josephine Standard, Administratrix, against Texaco was entered May 22, 1972. Texaco filed a timely motion for judgment notwithstanding the verdict and, alternatively filed motion and grounds for a new trial. These motions were overruled on March 22, 1973. Texaco appealed asserting various grounds for reversal. The court, however, is of the opinion that Josephine’s evidence was not sufficient to create a submissible jury case. Therefore, this court reverses the judgment with directions to enter judgment in favor of Texaco since it made timely motions for directed verdicts and for judgment n. o. v. It will only be necessary to discuss the single issue of whether a submissible case was presented.

Harvey Standard was a 37-year-old man who met his death in an industrial accident at General Electric’s Appliance Park on December 31, 1968. Harvey had been employed by General Electric for approximately 1½ years. All of this time he worked in Building # 6, first as a janitor and later as a maintenance man. He met his death when gasoline he was using to clean oil from an enclosed broach pit in Building # 6 exploded and caught fire.

General Electric had closed its plant during the Christmas holidays and used that time to conduct a housecleaning of Building # 6. On the day before the fire and explosion, Harvey’s foreman assigned him the task of cleaning the broach pit.

The broach is a machine which cuts holes through metal. A part of the broach extends below floor level into a pit approximately 10 to 15 feet square and 7 to 8 feet deep. The pit is covered by a thick piece of metal and ingress and egress is through a trapdoor in the cover, and a ladder into the pit. A cutting oil is used in the operation of the broach and over a long period of time the oil had caused a brown residue to form. Harvey’s foreman described the residue as a fungus and testified that the broach had not been cleaned for 18 years. Harvey’s assigned task was to remove the residue from the base of the machine and from the walls of the pit. Two other men, William Schroerlucke and Charles Long, were assigned to help him.

Building # 6 is a large building measuring some 600 feet across and some 900 feet deep. The front of Building # 6 faces east and the broach pit is located in the rear near the west wall. Testimony was that two doors are located at the south wall. One of the doors is identified as the front door, and the other the rear door. The distance between these doors is 300 feet. Facilities for storing and obtaining gasoline are outside the front door, and facilities for storing and obtaining kerosene are outside the rear door. Texaco had a contract to supply both gasoline and kerosene to Building # 6. Kerosene was stored in an underground tank which belonged to General Electric and was located outside the rear door. Gasoline was stored in a 1,000 gallon skid tank which was leased by Texaco to General Electric and was located outside the front door. It was an above-ground tank and gasoline was withdrawn by a hand-operated pump. The tank was 8 feet long and had a diameter of 4V2 feet. The skid tank, at the time of the explosion and death of Harvey Standard, had no markings other than a decal which contained the word “Texaco.” Soon after the explosion and fire some employee of General Electric called the sales agent of Texaco. The sales agent came to General Electric’s premises and stenciled on the skid tank in bold letters the word “Gasoline.” On the day of the fire Schroerlucke and Long took a five-gallon enclosed can of kerosene and some rags to the broach pit and started Harvey on the job of cleaning the pit. They then left and didn’t see Harvey again until around 11 a. m. They all met in the vicinity of the maintenance office. Harvey reported that he had run out of kerosene and asked where he could get more. Schroer-lucke, Long, and Harvey were facing the rear of the building. They told Harvey that the kerosene was outside the door, which was identified as the rear door on the south wall. Harvey was told that the kerosene was outside that door and in a red pump marked “Kerosene.”

After lunch Harvey was seen by his foreman, Douglas Slaughter. Slaughter was riding a battery-powered motorscooter and he saw Harvey walking toward the broach pit carrying the five-gallon enclosed can. Slaughter gave him a ride on the scooter to the broach pit. As far as the record shows, Slaughter was the last person to see Harvey before the explosion.

The explosion occurred at 12:35 p. m. The five-gallon enclosed container was found on top of the pit, and in the pit a one-gallon, open-top container was found.

Harvey suffered severe burns and was immediately taken to the hospital. On the way to the hospital he lapsed into unconsciousness twice. He died seven hours after his admission to the hospital and never regained consciousness.

The only allegation of negligence on the part of Texaco was its failure to label the skid tank. Josephine contends that since Harvey was not acquainted with Building # 6, instead of going to the rear door where the kerosene was located, he went to the front door where the unmarked gasoline tank was located and obtained gasoline rather than kerosene.

After the explosion General Electric conducted an investigation. The liquids in the five-gallon closed container, the one-gallon open bucket, and samples of the outside gasoline tank and kerosene tank were tested. The tests revealed that, at the time of the explosion and death of Harvey Standard, both the five-gallon safety can and the one-gallon open bucket contained gasoline.

There is no proof as to how or where Harvey got the gasoline. There is no testimony as to what ignited the gasoline vapors. In the absence of statute or regulation, Texaco in leasing the gasoline tank to General Electric, had no duty to General Electric or its employees to label the tank. Under the terms of the lease, General Electric had complete control over the tank with the obligation to maintain it. In order that the jury’s verdict be sustained in this case the jury would have to resort to a number of possibilities. There is absolutely no proof that the accident was caused by the failure of Texaco to label the tank. Liability must rest on a more solid basis than speculation and surmise.

The only negligence shown by the proof is on the part of General Electric. It had the duty to supply the kerosene. Its employees, including Harvey’s foreman, knew that Harvey was inexperienced in the task he was performing. Schroerlucke and Long, who were assigned to assist Harvey, were derelict in their respective duties in replenishing the additional kerosene.

Prosser in his Handbook of the Law of Torts (4th Ed. 1971) discusses the problem of causation and proof at page 241. • He says that the plaintiff in this type of case must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of a defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced it becomes the duty of the court to direct a verdict for the defendant.

In a case somewhat similar to the facts in the case at bar, this court said,

“The proof in this case establishes no more than possibilities or combinations of possibilities. We can find no evidence of substance which would even tend to tilt the balance of causation as between an unavoidable accident, a defective condition in the pump house, or negligent activity on the part of appellant’s employee. It is pure guesswork that the fire was attributable to the latter and, of course, that is the only conjecture upon which appellant's liability can be based. Since the claimants’ proof did not pierce the veil of speculation, appellant was entitled to a directed verdict.” Highway Transport Co. v. Daniel Baker Co., Ky., 398 S.W.2d 501 (1966). See also Savill et al. v. Hodges, Ky., 460 S.W.2d 828 (1970).

Josephine Standard, as administra-trix of Harvey Standard, failed to prove any negligence on the part of Texaco. Likewise, there was no evidence as to the cause of the fire and explosion. Texaco was entitled to a directed verdict in its favor. Hence, it was entitled to judgment n. o. v.

The judgment is reversed with directions to enter judgment in favor of Texaco.

All concur, except REED, C. J., not sitting, and CLAYTON, J., dissenting.


author: PALMORE, Justice.

text:
    William Hansel BUTLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 26, 1976.
    Terrence R. Fitzgerald, Deputy Public Defender, Paul G. Tobin, Jefferson Dist. Defender, Bart Adams, Staff Atty., Louisville, for appellant.
    Ed W. Hancock, Atty. Gen., Carl T. Miller, Jr., Deputy Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

William Hansel Butler appeals from a judgment entered in accordance with a verdict finding him guilty on two counts of armed robbery and fixing his sentence at life imprisonment on each.

The only argument with enough substan-tiality to justify discussion is that the fruits of an illegal search were admitted in evidence against him.

The robberies took place at a pawn shop in Louisville on July 24, 1974. Two days later, acting on a tip from an unidentified source to the effect that one of the robbers was at 1721A Harrod Court in Louisville, detectives of the Louisville Police Department went to that address and knocked on the door. They did not have a search warrant or an arrest warrant. The door was opened by a young lady. The officers told her they were looking for Butler and asked if they could look inside, to which she replied, “Sure,” and let them in. They found Butler lying under a pile of clothes in a bedroom closet and arrested him. Shortly thereafter, continuing to search the vicinity, they discovered under the pile of clothing some boxes of .38-calibre cartridges and, in a coat hanging immediately above where Butler had been hiding, a .38-calibre pistol. The pistol and shells were identified at the trial as having been stolen during the robbery at the pawn shop.

The premises in question were identified at the trial as the apartment of one Carolyn Macklin, with whom Butler had lived for several years, and who was the mother of his child. Some weeks prior to the arrest, however, there had been trouble between Butler and Carolyn, and she had put him out and caused him to be placed under a peace bond. On the night before he was arrested she met him at a tavern and apparently permitted him to go back to her apartment, and they stayed there together that night. On the next night, when he was arrested, she was not at home. The young lady who answered at the door and let the detectives in was a babysitter. Though it is not expressly established in the record, we assume that the babysitter was employed by Carolyn alone. There was no evidence tending to identify what, if any, child or children were present under her care.

From the foregoing circumstances it seems clear that Butler was in the apartment by permission of Carolyn. He therefore had standing to challenge the legality of the search. Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Assuming for sake of the argument that the arrest itself was unlawful as not supported by probable cause, the search cannot be upheld as incident to a lawful arrest. The question, then, is whether it can be upheld on the basis of the babysitter’s consent.

Consent to a search may be given by a third party who has “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” (Emphasis added.) United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). See also annotation, Authority to consent for another to search or seizure, 31 A.L.R.2d 1078 (1953).

In People v. Misquez, 152 Cal.App.2d 471, 313 P.2d 206 (1957), a search of the absent defendant’s home was upheld on the strength of his babysitter’s permission. A contrary result was reached in the more recent case of People v. Litwin, 44 A.D.2d 492, 355 N.Y.S.2d 646 (1973). Both of these cases involved the tenant himself, whereas this case involves the status of one who was, at the moment at least, a casual visitor. The decisions thus far rendered by the United States Supreme Court do not resolve the problem, but we think it is reasonable to assess the consent in terms not only of the status of the party who gave it, but also the status of the party whose rights are affected by it. That is, if we assume that a babysitter’s consent should not be valid with respect to the master of the house, it does not follow that it should not be held good as against someone whose reliance upon the security of the Fourth Amendment is less justified and of less social importance.

In Garr v. Commonwealth, Ky., 463 S.W.2d 109, 114 (1971), the defendant and his sister lived in the home of their parents. The sister allowed the police to search the defendant’s room. After a careful review of the precedents then available we held the search valid on the theory that the sister’s authority over the premises was at least equal to and coextensive with that of the defendant. In this instance we think the status of Butler relative to that of the babysitter was ever more tenuous, and that as between the two the babysitter had the superior right of dominion and control, and the right to permit the search.

Another question that often figures in the resolution of search and seizure cases is whether the police should reasonably be expected to have procured a warrant, which depends of course on the exigencies of the moment. Strictly speaking, it ought not to be relevant when the legality of the search depends entirely on permission, as in this instance, but if and to the extent that it is relevant, the answer is that when the object of a search is a suspected armed robber in hiding time certainly is of the essence.

The judgment is affirmed.

All concur.

      . KRS 433.140 (now repealed and superseded by the Kentucky Penal Code).

      . Cf. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Iles v. Commonwealth, Ky., 476 S.W.2d 170 (1972).

      . We do not accede to the connotation that the consent is given “for another,” in the sense that it waives someone else’s rights.

      . See, however, the dissenting opinion of Mr. Justice Douglas in United States v. Matlock, 415 U.S. 164, 178, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

      . Whether the police officers actually had sufficient probable cause to arrest the suspect is, we think, clearly irrelevant to the question of whether they had ample time in which to apply for a warrant to search the premises.