author: REYNOLDS, Justice.

text:
    Henry W. HENSLEY, Appellant, v. LUBBOCK NATIONAL BANK and Charles W. Craig dba Craig Motor Company, Appellees.
    No. 8828.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 9, 1978.

      Walters & Associates ' V. Duane Neill), Lubbock, for appellant.
    • Key, Carr, Evans & Fouts (Yvonne M. Faulks), Clifford, Sims & Kidd (Don R. Kidd), Lubbock, for appellees.
   ON MOTION FOR REHEARING

REYNOLDS, Justice.

We grant Lubbock National Bank’s motion for rehearing, withdraw our 12 December 1977 opinion, set aside our judgment, and substitute this opinion.

An instructed verdict terminated a multi-ground action brought by a purchaser of two motor vehicles, which he bought for another who could not obtain credit, against the financing bank and the seller to recover statutory penalties for violations of two state and two federal enactments governing credit transactions. The evidence either fails to raise a material fact issue that the transaction did, or establishes that the transaction did not, come within the protection of the enactments. Affirmed.

Henry W. Hensley, formerly a used car salesman and presently in the bail bond business in Lubbock, gave a draft to assist Jim McManus in purchasing a 1968 Oldsmobile automobile. The draft was dishonored at the bank. Hensley prevailed upon Charles W. Craig, d/b/a Craig Motor Company, to honor the draft and finance the purchase through the motor company. McManus defaulted in the payments and Hensley repossessed the automobile, delivering it to the motor company.

Because he had involved Craig in the McManus transaction, Hensley told Craig that he would assist in disposing of the automobile. Hensley then “got into the deal with Tommy Hill to purchase” the 1968 Oldsmobile and a 1970 Ford pickup. According to Hensley, Hill needed a car for his wife, who sold Avon products, to drive and Hill used the pickup in laying carpet.

Hensley had, under his characterization, a • business relationship and a friendship with Hill. Hill was a carpet layer who also owned a business named Business Reports Service. Hensley had committed himself to, and did, loan Hill $5,000 for the business. The authorized signatures for the bank account of Business Reports Service were Hensley’s and Hill’s. Hensley’s daughter worked for Hill in the business.

When Craig would not accept the credit of Hill, Hensley signed the instrument, which Craig prepared and upon which Hensley bases his actions, for the purchase of the two vehicles. The instrument, which Hensley admittedly did not read and which was like a “bunch” Hensley had filled out in the past, provided that the deferred payment price was payable in eighteen equal installments.

Hensley testified that he was going to get nothing out of the transaction, and that his purpose in signing the instrument “was just trying to help Tommy Hill out.” His testimony is that “I signed a contract where it was sold to Tommy Hill;” that he was, and Craig knew he was, purchasing the vehicles for Hill; that Hill, and not Hensley, was to make the payments; and that, when the vehicles were paid for, Hensley was going to assign the titles to Hill. In elaboration, Hensley was asked and answered as follows:

Q In any event at the time that deal was made for Tommy Hill, Mr. Hensley, you weren’t going to use that car for your own use were you, either one of them?
A Neither one of them.
Q And you had no intentions of driving either car yourself?
A No.
Q It was not for your personal use, nor for your household use, nor for any agricultural purposes was it?
A No, it wasn’t.
⅜ ⅜ * % * ‡
Q What you intended to do in getting involved with Tommy Hill on the thing, you intended to buy the cars and then when they were paid for you were going to transfer the titles over to him?
A Correct.
Q So you were buying the cars to be resold to Tommy Hill?
A I wasn’t making any profit off of it if that’s what you mean.
Q I’m not saying you was going to make a profit, but that’s what you was going to do. You was going to buy it and then resell it to Tommy Hill.
A I was going to assign the titles to him, correct.
Q And that’s what you intended to do when you make the deal?
A Correct.
⅜ Jfc ⅜! ⅝ ⅝ Jfc
Q Now let’s talk about what your performance was. You considered this to be Tommy Hill’s car, didn’t you, and his pickup?
A Yes, I did.
⅜! ⅜ * ⅝ * *
Q So there is no question that these cars weren’t bought for your use?
A No, they wasn’t.
* ⅜ sfs sf: ⅜ ⅜
Q Because the cars were actually bought for that business [Business Reports Service]. Is that what you are telling me?
A No. The cars were actually bought by Tommy Hill.

The instrument Hensley signed was assigned to the Lubbock National Bank. Of the eighteen installments, Hill paid only four, three of which were paid after Hensley loaned Hill the money to pay them. The loans were included in the $5,000 Hensley loaned Hill. Repossession of the motor vehicles was agreed upon by Hill, Hensley and Craig. Hill took the pickup to the motor company; Hensley got the automobile and delivered it. Hensley thought Craig would sell the vehicles “and we was going to come out on them.”

Thereafter in Lubbock National Bank’s suit against Hensley for a balance claimed due on the purchase price of the vehicles, Hensley asserted actions against both the bank and Craig. He alleged that the bank and Craig had violated the provisions of, and were therefore liable to him for the statutory penalties provided in, the Texas Consumer Credit Code, Texas Revised Civil Statutes Annotated, Article 5069-7.01, et seq., and the federal Consumer Credit Protection Act, generally known as the Truth-in-Lending Act, 15 U.S.C.A., Section 1601, et seq. Additionally, Hensley alleged that the bank failed to give him notice that the repossessed pickup would be sold as required by the Texas Uniform Commercial Code, V.T.C.A., Bus. & C. § 9.504(c) (Supp. 1976-77); that Craig violated the odometer requirements of the federal Motor Vehicle Information and Cost Savings Act, 15 U.S. C.A., Section 1901, et seq.; and that each was liable for the statutory penalty provided for the violation each committed.

After the repossessed vehicles were sold, the bank nonsuited its cause, and the parties were realigned with Hensley as plaintiff. To make a submissible case for each of his actions, Hensley presented his testimony and that of Craig as an adverse witness, together with the written instrument of the transaction.

Following the presentation of Hensley’s evidence, the bank and Craig moved for instructed verdicts against Hensley. The grounds common to both motions were that the proof shows as a matter of law that Hensley was not a “retail buyer” or “buyer” under the Texas Consumer Credit Code or a “consumer” within the meaning of the federal Truth-in-Lending Act. The bank’s motion further asserted that notice to Hensley of the intended sale of the pickup was established as a matter of law and, in any event, Hensley had produced no evidence of any loss, while Craig’s motion included the ground that Hensley failed to prove a prima facie case of violation of the federal odometer provisions.

The court, finding “that no disputed fact issue exists in this cause,” withdrew the case from the jury and decreed that Hensley take nothing. Hensley has appealed from the take-nothing judgment.

Because the court can instruct a verdict if there are no fact issues raised by the evidence, In re Price’s Estate, 375 S.W.2d 900, 904 (Tex.1964), Hensley recognizes that he must assume the appellate burden of showing that the peremptory instruction cannot be supported on the grounds set out in the motions. McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex.1964). In this regard, Hensley contends that he introduced evidence that he was a person to whom the enactments apply and that the instrument he signed failed to meet the requirements of those enactments.

In view of the instructed verdict, any evidence supporting Hensley’s position must be accepted as true and all conflicts and inconsistencies must be resolved in his favor, Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859, 865 (1956), as well as every inference that may properly be drawn from the evidence. Echols v. Wells, 510 S.W.2d 916, 919 (Tex.1974). Notwithstanding, an instructed verdict is correct if there is no evidence to prove a necessary part of plaintiff’s case. Glenn v. Prestegord, 456 S.W.2d 901, 902 (Tex.1970). Moreover, if a litigant unqualifiedly admits positive and definite facts which, if true, defeats his cause of action, he is bound by his admissions and cannot successfully complain if the court directs a verdict against him. Stanolind Oil & Gas Co. v. State, 136 Tex. 5, 133 S.W.2d 767, 145 S.W.2d 569, 570 (1940). Accord, Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415, 418-19 (1960).

Texas Consumer Credit Code

To bring himself within the protection of Chapter 7 of the Texas Consumer Credit Code, which relates to motor vehicle installment sales, Hensley was required to produce evidence that he was a retail buyer or buyer. Vernon’s Ann.Civ.St. art. 5069-7.01(b) specifies that:

“Retail Buyer” or “Buyer” means a person who agrees to buy or buys a motor vehicle other than principally for the purpose of resale, from a retail seller in a retail installment transaction. (Emphasis added.)

Hensley’s declaration that his purpose in entering into the transaction was to help Hill out is clarified by his testimony establishing that the true purpose of the transaction was to effect a sale of the motor vehicles to Hill, who could not secure credit to purchase them in his own name. The method employed was a sale to Hensley with the understanding that the vehicles actually were bought by Hill, who could become the owner only through a resale by, or a gift from, Hensley. There is no testimony or inference of an intended gift. Instead, Hensley’s testimony is that Hill, not Hensley, used the motor vehicles; Hill, not Hensley, was to make the payments; and when Hill made the payments, Hensley was to transfer the titles to Hill in order to achieve the object of the primary transaction which, in law, would consummate a resale. It, therefore, is inescapable that Hensley, who did not even read the instrument he signed, bought the vehicles principally for the purpose of resale to Hill and, thereby, he was not a “retail buyer” or a “buyer” within the meaning of Chapter 7 of the Texas Consumer Credit Code. Thus, the instructed verdict was proper on this phase of Hensley’s action.

Federal Consumer Credit Protection Act

Whether there is evidence that Hensley entered into a consumer credit transaction within the ambit of the federal Consumer Credit Protection Act must be determined by subjecting the evidence favorable to Hensley to the definition in 15 U.S.C.A. § 1602(h) reading:

The adjective “consumer”, used with reference to a credit transaction, characterizes the transaction as one in which the party to whom credit is offered or extended is a natural person, and the money, property, or services which are the subject of the transaction are primarily for personal, family, household, or agricultural purposes.

Hensley only contends that he purchased the vehicles for the personal purpose of helping a friend. In this connection, we must ignore Craig’s testimony of Hensley’s statement to the legal effect that the vehicles were needed for business purposes which, by virtue of Section 1603, would exempt the transaction from the Act’s application.

One of the statutory requirements for a consumer credit transaction is that, as material here, the property which is the subject of the transaction is primarily for personal purposes. In Redhouse v. Quality Ford Sales, Inc., 511 F.2d 230, 234 (10th Cir. 1975), rehearing 523 F.2d 1, the purpose of the vehicle which was the subject of the transaction was tested by the use made of it; the same equation was made in both the concurring opinion at 239 and in the dissenting opinion at 240. By that test, Hensley’s testimony is conclusive that the vehicles which were the subject of the transaction were not for Hensley’s personal use, and the transaction would not come within the Act. Beyond that, even though Hensley’s motive in entering into the transaction was personal, his own testimony establishes that the purpose for purchasing the vehicles themselves was not personal to him, but it primarily was to vest their ownership in Hill. Under these circumstances, the transaction did not qualify as a federal consumer credit transaction, and the instructed verdict was proper on this aspect of Hensley’s cause.

Federal Motor Vehicle and Cost Savings Act

Hensley pleaded that Craig failed to disclose the odometer mileage readings to him in writing, thereby incurring civil liability set forth in 15 U.S.C.A. § 1989. The instrument Hensley signed has a line drawn through the space for entry of an odometer reading. Craig testified, but Hensley denied, that he gave Hensley a separate written document certifying to the odometer mileage on both vehicles. Thus, there was a fact issue whether Craig violated 15 U.S.C.A. § 1988(a)(1) requiring any transferor to give written disclosure of the cumulative mileage registered on the odometer to the transferee in connection with the transfer of ownership of a motor vehicle.

While the failure to disclose is a violation of Section 1988, Delay v. Hearn Ford, 373 F.Supp. 791, 795 (D.S.C.1974), the statutory remedies for that violation apply only if the violation is “with intent to defraud.” Section 1989(a). As a result, there is no cause of action for statutory penalties for mere negligence or even a knowing violation unless there is evidence of an intent to defraud. Pepp v. Superior Pontiac GMC, Inc., 412 F.Supp. 1053, 1054 (E.D.La.1976).

Hensley’s testimony is that he did not pick out the vehicles, he did not look for a speedometer reading, so far as he knew Craig did not tamper with the odometer readings, and that it probably would not have made any difference if the mileage had been disclosed. No inconsistency is shown by the testimony of Craig, who testified that he did not tamper with the odometer readings.

Even if Craig failed to disclose the mileage, there is neither testimony nor a factual basis for the inference that Craig’s failure was with the intent to defraud. Consequently, Hensley has produced no evidence of entitlement to damages under 15 U.S. C.A. § 1989(a). Birdwell v. Hartsville Motors, Inc., 404 F.Supp. 625, 629 (M.D.Tenn.1975). It follows that the instructed verdict was proper on this part of Hensley’s action.

Texas Uniform Commercial Code

The remaining portion of Hensley’s action stems from his allegation that the bank failed to give him notice that the pickup would be sold after a reasonable time. Hensley further alleges that the failure was a violation of the Texas Uniform Commercial Code for which he is entitled to the prescribed statutory penalty.

V.T.C.A.Bus. & C. § 9.504(c) (Supp.1976-77) provides that disposition of the collateral may be by public or private proceedings; and that, except in situations not applicable here, “reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor . . .’’If the proceeding is not in accordance with the Code’s provisions, Section 9.507(a) (Supp.1976-77) prescribes the measures of recovery.

Admitted into evidence, without proof of mailing and over Hensley’s objection for the lack of a proper predicate, was the bank’s copy of its letter addressed to Hensley and advising that, unless reclaimed in ten days, the pickup will be sold. Attached to the copy was a numbered receipt for certified mail showing the name of and the address for Hensley. Also introduced was a return receipt carrying the same certified mail number, marked “DELIVER ONLY TO ADDRESSEE,” and bearing the signature “Tom Hensley” in the space for designation of “ARTICLE ADDRESSED TO.” There is no other addressee shown on the return receipt and no signature appears on the line provided to indicate receipt of the article delivered. Hensley identified the signature “Tom Hensley” as that of his son, but he denied that he had received the bank’s letter or any notice from the bank that either vehicle would be sold.

The bank argues that despite Hensley’s denial, the signed return receipt is conclusive that the letter was mailed and, therefore, Hensley received notice required by Section 1.201(26), which reads:

(26) A person “notifies” or “gives” a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it. A person “receives” a notice or notification when
(A) it comes to his attention; or
(B) it is duly delivered at the place of business through which the contract was made or at any other place held out by him as the place for receipt of such communications.

The argument is not persuasive in the absence of any proof to connect the letter addressed to Hensley with the certified article receipted for by Tom Hensley. The receipt for certified mail attached to the copy does not fill the void, for there is no evidence concerning the attachment. Under these circumstances, Hensley’s sworn denial of any notification constitutes some proof of non-notification. Sudduth v. Commonwealth County Mutual Insurance Company, 454 S.W.2d 196, 197-98 (Tex.1970). Unresolved, then, is the material fact issue concerning notification.

If the fact issue concerning notification is resolved in favor of Hensley, the question becomes whether Hensley has shown a right to the specific statutory penalty for which he pleaded or the evidence warranted an issue on a loss caused Hensley because of his non-notification. As applicable here, Section 9.507(a) (Supp.1976-77) states:

If it is established that the secured party is not proceeding in accordance with the provisions of this subchapter disposition may be ordered or restrained on appropriate terms and conditions. If the disposition has occurred the debtor . has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this sub-chapter. If the collateral is consumer goods, the debtor has a right to recover in any event an amount not less than the credit service charge plus ten per cent of the principal amount of the debt or the time price differential plus ten per cent of the cash price. (Emphasis added.)

Hensley neither contends nor points to any evidence, and we have not found any probative evidence in the record, that he suffered any identifiable loss caused by a failure to notify him of the disposition of the pickup. Rather, Hensley pleads only that the non-notification entitles him to the penalty calculable under the statutory standards.

The penalty sum imposed for non-notification applies, by force of the statute itself, only if the collateral is consumer goods. Consumer goods are, by the Section 9.109(1) (Supp.1976-77) definition, goods “used or bought for use primarily for personal, family or household purposes.” Earlier noted was that Hensley does not contend that the pickup was bought for family or household purposes, and we previously determined that the pickup was not bought primarily for a personal purpose within the contemplation of a credit transaction.

A civil action for damages will not lie unless some damages are proven. Matrix Computing, Inc. v. Davis, 554 S.W.2d 288, 290 (Tex.Civ.App.-Amarillo 1977, no writ). Thus, there being no evidence that non-notification caused Hensley an actual loss, and it being established that the pickup was not consumer goods to which the statutory penalty applies, a necessary part of Hensley’s action failed, and the instructed verdict on this ground of the action was correct. Glenn v. Prestegord, supra, at 902.

The judgment is affirmed at Hensley’s cost.

       Craig cross-actioned against Hensley for damages arising out of the transaction. In disposing of the causes, the trial court also instructed a verdict in favor of Craig, but later granted a new trial and severed Craig’s cross-action. That cross-action is not involved in this appeal.


source: Caselaw Access Project

author: OSBORN, Justice.

license: Public Domain

text:
    Wesley T. DUTTON, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION, Appellee.
    No. 6564.
    Court of Civil Appeals of Texas, El Paso.
    Jan. 11, 1978.
    Rehearing Denied Feb. 8, 1978.

      Richard T. Marshall, El Paso, Boccardo, Blum, Lull, Niland & Bell, Edward J. Ni-land, Jr., Stanley A. Ibler, Jr., San Jose, Cal., R. Edward Pfiester, Jr., Heber N. Teerlink, Los Angeles, Cal., for appellant.
    Kemp, Smith, White, Duncan & Hammond, Jack C. Duncan, El Paso, for appel-lee.
   OPINION

OSBORN, Justice.

This is a suit for damages for personal injuries filed pursuant to the provisions of the Federal Employers’ Liability Act and the Safety Appliance Acts. Mr. Dutton, a brakeman for the Railroad Company, sustained injuries to his right knee when he stepped off a moving rail car and fell. Judgment was entered for the Railroad based upon jury findings in its favor. We affirm.

Mr. Dutton was a member of a train crew which left El Paso at 1:10 o’clock a. m. on September 14, 1971. While stopped at a siding to permit another train to pass, Mr. Dutton discovered a rail car with a defective air line. While disconnecting this car at the Desert, New Mexico, siding, Mr. Dut-ton stepped off the boxcar onto the toepath along the tracks. He stepped in a hole or depression and fell injuring his right knee. He subsequently had two knee operations and was wearing a leg brace at the time of trial. The jury failed to find that Plaintiff was not furnished a safe place in which to work. They found that there was a failure of the train brake system, but did not find this to be a proximate cause of Appellant’s injuries. They found no negligence on the part of Mr. Dutton and in part answered the damage issue favorable to him.

The Appellant first contends that the trial Court erred in defining proximate cause and particularly in giving the common law definition. The instruction requested by Appellant provided:

“ ‘PROXIMATE CAUSE’ means a cause which played any part, no matter how small, in actually bringing about or causing the injury.”

The trial Court gave the common law definition, modified the requested instruction and instructed the jury as follows:

“ ‘PROXIMATE CAUSE’, as that term is used in this charge, means that cause which, in its natural and continuous sequence, unbroken by any new independent cause, produces an injury, and without which cause, the injury would not have occurred, and which injury, or some similar injury, would have been reasonably foreseen by a person of ordinary care in the light of the attending circumstances. There may be more than one proximate cause of an injury.
“In this connection, you are further instructed that by ‘PROXIMATE CAUSE’ means a cause which plays any part in actually bringing about or causing the injury.”

It is urged that under the holdings in Coray v. Southern Pacific Company, 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208 (1949) and Rogers v. Missouri Pacific Railroad, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), an instruction on common law negligence has no place in an F.E.L.A. case, and that it is reversible error to give such an instruction. In the latter case, the Court discussed at length the test to be applied in this type of case, but the language used was with regard to the sufficiency of the evidence to raise a fact issue for jury determination and not with regard to a proper jury instruction. Bertrand v. Southern Pacific Company, 282 F.2d 569 (9th Cir. 1960), cert. denied, 365 U.S. 816, 81 S.Ct. 697, 5 L.Ed.2d 694 (1961). Even so, the opinion makes it clear that the single issue for determination is “whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury * * We believe the instruction as given in this case so advised the jury. They were told that proximate cause means a cause which plays any part in causing the injury.

In Tyree v. New York Central Railroad, 382 F.2d 524 (6th Cir.), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967). The Court affirmed a judgment in which the usual common law definition of proximate cause was used in the Court’s charge. In finding no reversible error, the Court said:

“In 53 Am.Jur. — Trial—Section 842, the general rule is well stated: ‘In considering the correctness and adequacy of a charge to the jury, it should be taken as a whole and read in its entirety; that is, each instruction must be considered in connection with others of the series referring to the same subject and connected therewith, and if, when taken together, they properly express the law as applicable to the particular case, there is no just ground of complaint, even though an isolated and detached clause is in itself inaccurate, ambiguous, incomplete, or otherwise subject to criticism.’ Cited in support of the foregoing rule is Patapsco Insurance Co. v. Soughgate, 30 U.S. 604, 621 (5 Pet.), 8 L.Ed. 243.”

While the instruction requested defined proximate cause as a cause which played any part, no matter how small, in causing the injury, and the definition as given defined the term as a cause which plays any part in causing the injury, there is no significant difference. A person competent to serve as a juror surely knows that “any part” encompasses and includes “any part, no matter how small.” In Continental Oil Company v. Lindley, 382 S.W.2d 296 (Tex.Civ.App.-Houston 1964, writ ref’d n. r. e.), the Court in a Jones Act ease said:

“ * * * The words ‘played any part’ encompass the slightest part. It was unnecessary to add the superfluous words ‘even the slightest.’ * * * ”

The first point of error is overruled.

Appellant’s second point urges error because of the trial Court’s failure to give a requested instruction with regard to proof of a specific act of negligence by the Defendant and inferences based upon both direct and circumstantial evidence. The Court, in this case, instructed the jury with regard to the evidence as follows:

“Evidence may be either direct or circumstantial. It is direct evidence if it proves a fact, without an inference, and which in itself, if true, conclusively establishes that fact. It is circumstantial evidence if it proves a fact from which an inference of the existence of another fact may be drawn.”

Although there is some difference in wording between the instruction requested and the one given, the one given by the Court is a correct statement of the law and does include a proper statement of the law with regard to inferences from circumstantial evidence. 2 McCormick & Ray, Texas Law of Evidence, 2nd Ed., Sec. 1481 (1956). Although the instruction given was not in the exact language as recommended in PJC 2.06, Texas Pattern Jury Charges, Vol. 1 (1969), it contains basically the same language and sets forth the same meaning as the Pattern instruction. Finding no error, Point of Error No. 2 is overruled.

Point of Error No. 3 complains because of the failure of the trial Court to give a general instruction with regard to the law to be applied in F.E.L.A. and S.A.A. cases. The proposed instruction would have accomplished nothing more than to tell the jury the effect of their answers. It was not related to any particular special issue, and those instructions which were given clearly set out the respective duties and responsibilities of each party with regard to their own conduct and acts, including that related to the equipment involved in this case. The trial Court is not required to give unlimited general charges in a special issue case, particularly where they are “not ‘necessary to enable the jury to properly pass upon and render a verdict on such issues;’" Boaz v. White’s Auto Stores, 141 Tex. 366, 172 S.W.2d 481 (1943); Tripp v. Watson, 235 S.W.2d 677 (Tex.Civ.App.—Fort Worth 1950, writ ref’d n. r. e.); Tripp v. Bioodworth, 374 S.W.2d 713 (Tex.Civ.App.—Eastland 1964, writ ref’d n. r. e.). Point of Error No. 3 is overruled.

The next point complains of the failure to give an instruction that there existed a continuous duty to provide a safe place to work “even though the Plaintiff’s duties at the time and place in question may have been fleeting and infrequent.” We find no error. The Court instructed the jury that there was a continuous duty on the part of the Railroad to use ordinary care in furnishing its employees a reasonably safe place to work and that this was a non-delegable duty. Certainly, the jury knew that if the duty existed, that it was nondelegable and it was continuous; it would be present even at places where Plaintiff’s duties may have been fleeting and infrequent. The Court’s instruction was as broad as it could be written, without any restriction as to time or place, and easily understood by the jury which tried the case.

While the Court’s charge must cover the broad general duties involved in this type case, it would be impossible for a trial Court to include every clause and phrase used by an appellate Court to enunciate and elaborate on the general duties involved in F.E. L.A. and S.A.A. cases. We conclude that the instruction as given was couched in language easily understood by a jury of average laymen, and that, basically, is all that is required. Traders and General Insurance Company v. Hockey, 278 S.W.2d 490 (Tex.Civ.App.—Amarillo 1955, writ ref’d n. r. e.). Point of Error No. 4 is overruled.

Appellant also asserts error because of the trial Court’s refusing an instruction on the elements of damages in an F.E.L.A. case. The damage issue as submitted is very close to PJC 11.04 in the Texas Pattern Jury Charges, Vol. 1 (1969). We conclude that the issue was properly submitted and the requested additional instructions would not materially aid the jury. But, in any event, no harm is shown in this case where the Appellant did not establish liability upon the part of the Railroad. Hunter v. Robison, 488 S.W.2d 555 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.); South Tex as Natural Gas Gathering Company v. Guerra, 469 S.W.2d 899 (Tex.Civ.App.-Corpus Christi 1971, writ ref’d n. r. e.). Point of Error No. 5 is overruled.

The Appellant next asserts error upon the part of the trial Court in admitting in evidence the written accident report forms made by the train crew. Counsel for Appellant proved by the first witness, Mr. Tierney, an assistant superintendent of the Railroad, that members of the crew were required to complete and file accident report Form No. 2611. As part of the cross-examination of Mr. Dutton, he acknowledged that he had filed Form No. 2611 the morning after the accident. He also said that members of the crew were required to complete the accident report form. He then identified the Form No. 2611 filed by each member of the train crew and their respective signatures on the form each one filed. Without objection, the report Form No. 2611, filed by Mr. Dutton, was read to the jury. It reflected the time and place of the accident, and with regard to the accident itself said:

“Nature of Injury Twisted mv right knee & leg
“Name and Address of Witness(es) None
“Extent of Damage unknown_
“Where were you when accident occurred Setting out a bad order Car
“State how accident occurred I was setting out Car on siding Desert, stepping on rock at slag twisting or wrenching mv right knee, both in the Cap and behind leg_”

The reports filed by the members of the crew which were received in evidence over objection by counsel for Appellant were only cumulative of the evidence contained in Mr. Dutton’s report. They all indicated there were no witnesses and that the extent of the injury was unknown. Three of the four reports stated the nature of the injury to be a twisted knee and the other report said “Unknown.” Three of the reports indicated that the crew member who signed did not know how the accident occurred, and the fourth member only reported that Mr. Dutton was setting out a car and claimed that he twisted his knee.

We conclude that the accident report forms were admissible as business records under Article 3737e, Tex.Rev.Civ.Stat.Ann., and the testimony of Mr. Tierney and of Mr. Dutton established that the members of the crew were required to file the report forms, that they were all filed with the Railroad agent the morning following the accident, and they all bear that date. Mr. Dutton even identified the signature on each report form as a member of the train crew with which he worked. We believe such testimony meets the requirements of Article 3737e, Sec. 2, concerning identity and mode of preparation of the reports.

But in any event, no reversible error is established under Rule 434, Tex.R.Civ.P. The reports by the members of the crew were cumulative of the evidence of Mr. Dutton’s report and corroborated his statements about the accident. Point of Error No. 6 is overruled.

The last point of error asserts that there was jury misconduct in referring to a dictionary during the deliberations to determine the meaning of “proximate cause.” At the hearing on the motion for new trial, ten jurors testified. The trial Court then filed findings of fact and conclusions of law. It found that during jury deliberations, a discussion occurred as to the meaning of “proximate cause” and that a juror looked up the word “proximate” in a pocket dictionary. It also found that the jurors were immediately admonished by the foreman and another juror that they must be governed by the definition contained in the charge of the Court and that definition was again read to the jury by the foreman. Although he found that the use of the dictionary was misconduct, the trial Judge concluded that the degree of misconduct was not material and that from the record as a whole, it did not reasonably appear that injury probably resulted to the Appellant. We have carefully reviewed the record and we concur in tho'se findings and conclusions and we find no reversible error from the record as a whole. Rule 327, Tex.R.Civ.P. This same issue was before the Court in Davis v. Damge, 328 S.W.2d 203 (Tex.Civ.App.—Houston 1959, writ ref'd n. r. e.), and the Court in that case concluded that where the dictionary definition of “proximate” was not established, appellant had not shown any injury. In this case, the dictionary used by one juror was not before the Court and the definition which was read to the jurors could not be shown at the hearing on motion for new trial. There was no proof that the jury failed to follow the Court’s charge or that they did not heed the admonition of the foreman. Prom the record as a whole, we do not find that injury probably resulted to the Appellant. Point of Error No. 7 is overruled.

The judgment of the trial Court is affirmed.


author: CLAYTON, Justice.

text:
    GARDNER MACHINERY CORPORATION et al., Appellants, v. U. C. LEASING, INC., Appellees.
    No. 8022.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 12, 1978.
    Rehearing Denied Feb. 9, 1978.

      Thomas 0. Harris, Houston, for appellants.
    Daniel H. Johnston, Jr., Houston, for ap-pellees.
   CLAYTON, Justice.

Appellee U. C. Leasing, Inc., brought this suit against Gulf Coast Crane & Rigging, Inc., and Gardner Machinery Corporation for default on a lease contract involving four cranes. Appellee also sued Gardner Machinery Corporation (hereinafter referred to as Corporation) and its president, William C. Gardner, Jr., for conversion of the proceeds of an agreed sale of one of the cranes. The case was tried before a jury, and judgment was entered upon the verdict in favor of appellee and against Gardner Machinery Corporation in the sum of $4,000 and against the Corporation and William C. Gardner, Jr., jointly and severally, in the sum of $80,000, from which judgment appellants appeal.

Gardner Corporation and appellee entered into a business arrangement in 1969. The Corporation purchased four heavy equipment cranes from the manufacturer of such cranes. In order to finance such purchase, the Corporation sold the cranes to appellee, took the proceeds of such sale and paid the manufacturer the total purchase price. The Corporation then leased the cranes from appellee and agreed to pay a certain amount of rental over a certain period of time. This amount of rental is referred to as the “payoff” figure or amount. At the end of the lease, if the payoff amount had been paid, title to such cranes would vest in the Corporation. Under their agreement, the Corporation, at all times, had the right to sell any or all of such cranes. Title to such cranes remained in appellee, and, whenever a crane was sold, a bill of sale would be executed by appellee to the new purchasers.

The Corporation attempted to negotiate a sale of the four cranes to Gulf Coast Crane & Rigging, Inc., but the sale was not consummated. Instead, the cranes were leased by Gulf Coast Crane & Rigging, Inc., from U. C. Leasing, Inc., appellee, with the Corporation guaranteeing the lease. Subsequently, the new lessee defaulted, and appellant William G. Gardner, Jr., met with a representative of appellee, and they negotiated a new agreement with reference to the four cranes. The trial court held that this new agreement constituted a novation of all previous agreements between appellants, appellee, and Gulf Coast Crane & Rigging, Inc. No complaint of this holding by the trial court is made by either party. This oral agreement, therefore, determines the obligations of appellants and appellee for the purpose of judging their subsequent actions. At this meeting, and at the time of making this new agreement, Gardner purchased for cash one of the cranes. The parties agreed that, in the words of appel-lee’s witness, “ . . . Bill Gardner would look for buyers for the three remaining cranes, he would locate those buyers, bring them to us, and remit any funds that were received to us.” They also agreed upon the total amount which was to be remitted to appellee. It was further agreed that, if the sale price for the three cranes exceeded the total amount of the “payoff”, then the Corporation would retain the excess, and, if the sale price was not equal to the amount of the “payoff”, then the Corporation would be obligated to pay to appellant the difference.

Pursuant to this agreement, the Corporation sold two of the cranes and remitted to appellee the sum of $104,000. The Corporation subsequently sold the remaining crane for $80,000. The amount to be remitted was in dispute, appellants’ contention being the sum to be remitted was $35,996.87 and appellees asserting the proper amount would be $84,277.74. The Corporation then tendered a check to appellee in the sum of $37,400.29 in full settlement. When there was no immediate response, the proceeds of the sale were used for general corporate purposes of the Corporation. Finally, sixty-two days after the tender letter, appellee returned the tender and refused to accept the same.

In answering the special issues, the jury found that in accordance with the oral agreement between the parties the sum of $84,277.74 was due and owing to the plaintiff (appellee) U. C. Leasing, Inc.; that the Corporation, acting by and through its officers, agents, servants, or employees, converted the proceeds from the sale of the fourth crane, and that William C. Gardner, Jr., in his capacity as President of the Corporation did not participate in, instigate, aid, or abet the Corporation in such conversion. Special Issue No. 4 inquired as to whether or not the plaintiff (appellee) waited more than a reasonable time to return the check to Gardner Machinery Corporation. This issue was predicated upon an affirmative answer to the issue inquiring of the conversion on the part of William C. Gardner, Jr., to which the jury answered in the negative. The jury did not answer this Special Issue No. 4.

The trial court set aside the finding that Gardner, individually, did not participate in the conversion, and held that he was liable for conversion in his individual capacity, and the court entered judgment against the Corporation and Gardner, jointly and severally, for conversion of the sale price of the crane in the amount of $80,000.

Appellant urges in its first point that the trial court erred in holding William C. Gardner, Jr., individually liable because a corporate failure to pay indebtedness is not a conversion. The law is well settled that an officer of a corporation is liable for any tort committed by the corporation through him. Western Rock Company v. Davis, 432 S.W.2d 555 (Tex.Civ.App.-Fort Worth 1968, no writ); Permian Petroleum Company v. Barrow, 484 S.W.2d 631 (Tex.Civ.App.-El Paso 1972, no writ). Furthermore, this is true whether or not the officer personally benefits from the tort committed. McCollum v. Dollar, 213 S.W. 259 (Tex.Comm.App.1919, jdgmt adopted). The liability of Gardner individually depends, therefore, on whether the refusal to pay over the proceeds of the sale of the fourth crane was a tort by the Corporation or simply a breach of contract. On this point, both parties apparently are in agreement.

The oral agreement between the parties consisted of two completely separate and distinct agreements or undertakings, namely: (1) The parties agreed on the amount of the liability of the Corporation under its guaranty of the Gulf Coast lease which was in default, and (2) The parties agreed that the Corporation would act as appellee’s agent in the sales of the cranes. The terms of this second portion of the agreement are not in substantial dispute, nor, when this latter portion of the agreement is isolated can there be any dispute over its legal effect.

The evidence shows that appellant Gard-ner agreed to sell the cranes and remit the proceeds of those sales to appellee. The absolute title and ownership in and to the cranes was in appellee. It is true that the ■Corporation’s obligation to remit proceeds was limited by the extent of its agreed obligation, and it is likewise true that the Corporation would have been obligated, after remitting all of the proceeds, for any deficiency on the total amount of its obligation. These conditions do not in any way alter, however, the absolute duty of the Corporation to remit the proceeds obtained from the sales of the cranes.

Under the facts of this case, the cranes were in possession of Gulf Coast, the Corporation was to sell the cranes, remit the proceeds to appellee and obtain a bill of sale for the purchaser. This factual situation seems to be almost identical with the facts in Searle-Taylor Mach. Co., Inc. v. Brown Oil Tools, Inc., 512 S.W.2d 335, 337-338 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.). The court held in that case that:

“Appellant . . . was authorized to sell the machinery on behalf of appel-lee and to collect the proceeds of sale for appellee’s benefit. As appellee’s agent in such transaction, it had a duty to notify appellee of its collection and to make remittance of the proceeds to appellee within a reasonable period of time. . Until remittance was effected, appellant had the duty to keep and maintain the sales proceeds as a separate and identifiable account for the benefit of appellee.”

We hold that the sales proceeds, coming into the hands of the Corporation, constituted trust funds and the Corporation owed a duty to appellee to account for such funds. A fiduciary relationship existed between appellee, as principal, and the Corporation, as agent, with respect to the sales proceeds. Searle-Taylor Mach. Co. Inc. v. Brown Oil Tools, Inc., supra. The breach of this duty by the Corporation and through its President, William C. Gardner, Jr., constituted a tort of conversion for which both the Corporation and William C. Gardner, Jr., are liable. Appellants’ first point is overruled.

Appellants’ second point is that the jury finding as to the amount owing under the contract is so against the great weight and preponderance of the evidence as to be manifestly unjust. The method of calculating the amount of the indebtedness was in dispute. The total amount was in dispute. However, we feel no useful purpose would be served by reciting the conflicting evidence given by the parties. Appellee’s witness testified the amount to be $84,277.74. Appellants testified the amount was $35,-996.87. The jury chose to believe the appel-lee. The evidence presented was of probative value to support the findings of the jury. This point is overruled.

The third point urges error of the trial court in submitting the conversion issues. In view of our disposition of the question concerning conversion we agree that these issues should not have been submitted. However, it is clear that no harm was suffered by Gardner individually even though there was no factual dispute justifying the submission of such issues. The jury found that he had nothing to do with the failure by the Corporation to turn over the proceeds (although this finding was properly disregarded by the trial court). The error, if any, did not amount to such a denial of the rights of the appellant “as was reasonably calculated to cause and probably did cause rendition of an improper judgment in the case.” Tex.R.Civ. P. 434; Associates Investment Company v. Cobb, 386 S.W.2d 578 (Tex.Civ.App.—Beaumont 1964, no writ).

Appellants further complain that the submission of the conversion issues prevented them from obtaining a jury answer to Special Issue No. 4 which related to the delay in returning the appellants “in full settlement” check. Special Issue No. 4 was predicated on an affirmative answer to Special Issue No. 3, which inquired as to Gardner’s actions relating to conversion. Appellants made no objection to Special Issue No. 4; so, we have nothing before us to consider in connection therewith. The complaint is made that since the jury answered Special Issue No. 3 in the negative, they could not answer Special Issue No. 4 because of its predicate on an affirmative answer to Special Issue No. 3. The only objections to the charge made by appellants were:

“ . . . objects to Issue No. 2 in the following respects:
“1. There is no dispute in the evidence as to the facts behind this charge.
“2. As a matter of law it is impossible to convert monetary proceeds.
“And I will make the same objection to No. 3.”

The purported objection to Special Issue No. 3 is in direct conflict with the provisions of Tex.R.Civ.P. 274, and cannot be considered by this court. Sledge. v. Murphy, 284 S.W.2d 938 (Tex.Civ.App.—Waco 1955, no writ). There being no valid objections in the charge to Special Issues No. 3 and No. 4, there is nothing before us for review. This point is without merit and is overruled.

No error being shown, the judgment of the trial court is affirmed.

AFFIRMED.


author: WARD, Justice.

text:
    Rita Munn ROBERTSON, Appellant, v. UNION PLANTERS NATIONAL BANK OF MEMPHIS, TENNESSEE, Appellee.
    No. 6656.
    Court of Civil Appeals of Texas, El Paso.
    Jan. 25, 1978.
    Rehearing Denied Feb. 22, 1978.
    Gloria T. Svanas, Odessa, for appellant.
    Canada, Russell & Turner, Edward P. Russell, Jr., Memphis, Tenn., Shafer, Gilli-laud, Davis, Bunton & McCollum, Inc., Ray C. Stoker, Jr., Wm. Michael Holmes, Odessa, for appellee.
   OPINION

WARD, Justice.

Rita Munn Robertson filed suit in the District Court of Ector County against the Union Planters National Bank of Memphis, Memphis, Tennessee, to recover damages for alleged wrongful repossession of her automobile. The Defendant filed a motion to dismiss and/or vacate service asserting as one ground that it was a federally chartered national bank located only within Shelby County, State of Tennessee, and asserted that it could only be sued at that place under the provisions of Section 94, Title 12, of the United States Code. The trial Court, upon hearing, sustained the motion and dismissed the Plaintiffs suit. We affirm.

The Plaintiff purchased a 1973 Chevrolet automobile in West Memphis, Arkansas, on January 30, 1973, at which time she was living in Memphis, Tennessee. The purchase was financed through the Defendant/National Bank where she had an account. The Plaintiff then moved to Texas in April of 1973 and, prior to moving, she told a teller at the Bank that she was moving and that she was taking the automobile with her. According to the terms of the security agreement covering the automobile, monthly payments were in the sum of $147.08 and were due on the fifteenth day of each month. After her move, she made her payments by check drawn on an Odessa Bank. The evidence showed that the March, 1974, payment was made on April 25, 1974. The Plaintiff attempted to make the April payment by check dated May 8, 1974, but the repossession occurred on the night of May 8, 1974, before the check was received. The only testimony relative to the repossession is that the Plaintiff, after parking her car in the driveway of her home, locked the car and went to bed around 1:00 o’clock a. m. on the morning of May 9, 1974. When she awakened, the car was gone; she reported her automobile as stolen and then telephoned the Defendant/Bank and was told that she could recover her personal property from the automobile from one Frosty Thomas in Odessa. She recovered her personal property, and by notice dated May 17, 1974, the Bank notified her that the automobile would be sold in Memphis, Tennessee, at public auction on May 24, 1974. According to the terms of the security agreement, default would exist if the buyer defaults in the payment of any installment due thereunder. The argument further provided that in the event of default, the Bank could, and without notice, declare all installments to be immediately due and payable and the Bank would then have all the remedies and rights of a secured party under the Uniform Commercial Code or any other applicable law. It further provided that the Bank could, with or without legal process and with or without previous notice or demand for performance, enter any premises wherein the vehicle might be and take possession of the same. On May 24, the Bank sold the automobile, and the Plaintiff then filed her suit alleging that the Bank had unlawfully converted the automobile by effecting an unauthorized and wrongful repossession without notice or hearing.

By her first point, the Plaintiff claims error of the trial Court in dismissing the suit as she states that the Defendant/Bank had filed a general appearance which was not in accordance with the requirements of Rule 120a, Tex.R.Civ.P. If we were only concerned with service of process under the long arm statute, Article 2031b, Tex.Rev. Civ.Stat.Ann., and a testing of the trial Court’s jurisdiction over the person of the Defendant under the terms of Rule 120a, we would have no real problem. The special appearance made by the Defendant/Bank complied in substance with the requirements of Rule 120a, and, in our opinion, did not constitute a general answer. However, we would still be inclined to agree with the Plaintiff’s position that the Defendant/Bank comes within the reach of Article 2031b, and that the Court had the jurisdiction of the case and could have determined the Bank’s potential liability at a full trial on the merits. The facts of the occurrence in this case are remarkably similar to those in Arterbury v. American Bank and Trust Company, 553 S.W.2d 943 (Tex.Civ.App.-Texarkana 1977, no writ), although there the defendant was a Louisiana corporation. There, the Court, in reversing the trial Court, held that jurisdiction should have been taken and that it was not unreasonable to require the non-resident to defend in this State the tort action of wrongful repossession which grew out of the very act committed in this State by the non-resident; that the very act within the State of seizing the automobile was a sufficient basis for the exercise of jurisdiction to determine whether or not the act gave rise to liability in tort; and that the merits of the alleged cause of action were not at issue in the jurisdictional hearing.

But if we be in agreement with that decision and do sustain the Plaintiff’s first point, that still does not decide this appeal. Here, we are within very narrow limits which have been mandated by an Act of Congress. Sec. 94, Title 12, U.S.C.A., requires that actions against a national banking institution be brought only in the County in which the association is located. The provisions of that Statute are mandatory. Mercantile National Bank at Dallas v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963). However, this federally-guaranteed right to be sued in the County of its domicile may be waived by the Bank by either express or implied declaration or by failing to assert the privilege when sued outside its District. Michigan National Bank v. Robertson, 372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961 (1963); First National Bank of Charlotte, North Carolina v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 282 (1889).

This brings us to the Plaintiff’s second point, which is the assertion that there was a breach of the peace committed in Texas by the Bank in its self-help repossession, and that this creates a waiver of the Bank’s statutory privilege to be sued in Tennessee. Waiver, as applied to a motion to dismiss where the defending bank was an non-resident of the State, has not been passed upon directly by any case arising in our State Courts. Elsewhere it has. Thus, a case arose in California where a Michigan National Bank had actively solicited within the State of California for the financing of sales to California residents of airplanes that would be located in that State. There, when that Bank resorted to self-help to repossess an airplane under a security interest which had been created in California, the California Court held that it had waived its privilege to insist on being sued in Michigan. Michigan National Bank v. Superior Court, Co. of Contra Costa, 23 Cal.App.3d 1, 99 Cal.Rptr. 823 (1972). For similar results, see Vann v. First National Bank in Little Rock, 324 So.2d 94 (Fla.App.1975).

However, in a case similar to the facts before us, the contrary was held. There, a Nevada National Bank had financed a car in Nevada and the car owner had then moved to California and had fallen behind in his payments. The California Court held that the mere fact that the Nevada National Bank resorted to self-help in the State of California in effecting the repossession did not create a waiver. There, the Court emphasized that there was no voluntary act of the Bank that was not compelled by the necessities of the car owner’s conduct, and, therefore, nothing showed any intent on the part of the Bank to waive the benefits of Section 94. Nevada National Bank v. Superior Court for County of Los Angeles, 45 Cal.App.3d 966, 119 Cal.Rptr. 778 (1975).

A Plaintiff argued unsuccessfully in Federal District Court that the Bank had waived its Section 94 immunity from suit in Georgia by committing a fraudulent act there. The Fifth Circuit, in discussing the definition of waiver, stated that a waiver may be inferred from conduct inconsistent with the assertion of the privilege. In order to constitute a waiver, the declaration or conduct relied on must demonstrate a “voluntary and intentional relinquishment or abandonment of the privilege.” It held that the commission of a tort in a foreign district was an insufficient basis for inferring waiver of the venue privilege. Northside Iron and Metal Company v. Dobson and Johnson, Inc., 480 F.2d 798 (5th Cir. 1973). See generally, Annot. 1 A.L.R.3d 904; 10 Am.Jur.2d Banks, Sec. 836, p. 804 (1963).

Where the Section has been construed in this State it has been in connection with a plea of privilege and the same rules have been held to apply, particularly with regard to waiver. However, where self-help has been resorted to in effecting a repossession, a conflict has developed as to whether or not the self-help can constitute a waiver. The self-help doctrine, in connection with rather aggravated circumstances, was said to apply and the National Bank waived its venue rights in Texas Commerce Bank National Association v. Tripp, 516 S.W.2d 256 (Tex.Civ.App.—Fort Worth 1974, writ granted). That case became moot while the writ was pending in the Supreme Court which set aside the judgments of the trial Court and the Court of Civil Appeals with a notation that it was not passing on the merits. 18 Tex.Sup.Ct.Jr. 278 (April 12, 1975). In First National Bank of Midland v. Stoutco, Inc., 530 S.W.2d 619 (Tex.Civ.App.-San Antonio 1975, writ dism’d), our traditional definition of waiver was emphasized by Chief Justice Barrow holding that waiver “requires an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it.” In that case, no waiver was found where the Bank obtained a writ of garnishment in Midland County which resulted in freezing the Plaintiff’s bank account in Bexar County. Finding no waiver, the Plaintiff’s suit in Bexar County alleging a wrongful garnishment was ordered transferred to Midland County.

Following the same thought that a waiver requires an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right, no waiver was found in the self-help case of Rivera v. Austin National Bank, 547 S.W.2d 735 (Tex.Civ.App.—Corpus Christi 1977). Again, the facts there are similar to those in the case before us. There, the Bank resorted to self-help to repossess the mobile home of the Plaintiff in Cameron County. Following the holding in the Stoutco case, the Court found no waiver and affirmed the transfer of the case on plea of privilege to Travis County. Under the reasoning of the last two cases, we can find no waiver present in the instant case.

The Plaintiff argues that a breach of the peace occurred at the scene and that because of that an implied finding of waiver should be found. However, under the Plaintiff’s testimony, there was neither force nor fraud nor breach of the peace. The repossession took place during the nighttime, and the Plaintiff was not aware that it occurred. In Ford Motor Credit Company v. Cole, 503 S.W.2d 853 (Tex.Civ.App.—Fort Worth 1973, writ dism’d), self-help repossession of the automobile occurred while the debtor and his family were asleep and that was held to be peaceful and lawful. There, the mortgage instrument stated that on default the creditor had a right to repossess the property wherever the same might be found with free right of entry. It was pointed out that Section 9.503 of the U.C.C. allows the secured party to take possession of collateral when the debtor defaults, and provides that the secured party may proceed without judicial process, if this can be done without breach of the peace.

Since the security agreement before us contains the provision providing for self-help upon default, and Sec. 9.503 of the U.C.C. approves of the action taken by the Bank, and since all occurrences taken in Texas were because of the Plaintiff’s own conduct, we overrule the Plaintiff’s second point and hold that the mandatory provisions of Sec. 94, Title 12, U.S.C.A., control. The judgment of the trial Court is affirmed.


text:
    AIR FORCE VILLAGE FOUNDATION, INC., Appellant, v. NORTHSIDE INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 6625.
    Court of Civil Appeals of Texas, El Paso.
    Jan. 25, 1978.
    Rehearing Denied Feb. 22, 1978.

      Hardberger, Branton & Herrera, Inc., James L. Branton, San Antonio, Hackler, Londerholm, Speer, Vader & Austin, Eugene T. Hackler, Robert C. Londerholm, Olathe, Kan., for appellant.
    Dobbins, Harris & Gonzalez, William P. Dobbins, Richard W. Harris, Jane Macon, City Atty., Sparta Bitsis, Asst. City Atty., Bill M. White, Dist. Atty., Ray Simpson, Asst. Dist. Atty., San Antonio, for appel-lees.
   OPINION

WARD, Justice.

This is a tax suit instituted by Northside Independent School District to collect ad valorem taxes on the property of Air Force Village Foundation, Inc., for the years 1972 through 1975. The City of San Antonio, the State of Texas, and the County of Be-xar intervened claiming ad valorem taxes for the same period. The Foundation defended on the basis that its property was exempt from such taxation as the property of an institution of purely public charity within the meaning of Article 8, Sec. 2, of the Texas Constitution, and Article 7150, Sec. 7, Tex.Rev.Civ.Stat.Ann. Trial was to a jury with three special issues being submitted. The jury determined by its answers to the first two that the Foundation was bound by its charter and its by-laws to, and in fact did, dispense its aid to those in sickness or distress without regard to the poverty or riches of the recipient. By the third issue, the jury, after having been directed to consider an evaluation of the total operation of the institution, answered that for each of the taxable years in question the institution was not a purely public charity. The Court thereafter entered judgment holding that Appellant was not an institution of purely public charity, was not exempt from ad valorem taxes, and granted judgment for taxes, penalties, and interest for the years in the total sum of $505,-593.67. We affirm.

The property is known as Air Force Village and is located in San Antonio. The institution is described as a retirement home for the aged providing a wide range of care and services to meet their special needs, including housing, medical care, a licensed nursing home section, meals and dietary supervision, religious, educational and social activities. The property includes a high rise building with 216 apartments with a community center, dining room, chapel, music room, library, laundromat, cafeteria, infirmary, and beauty parlor. In addition to the main building, there are 32 apartments on the outside known as garden apartments. A licensed nursing home section is located in the main building.

Air Force Village Foundation, Inc., is a non-profit corporation organized under the laws of the District of Columbia and with a permit to do business in Texas. Its charter provides that its basic purpose is to provide elderly persons with housing facilities and services specially designed for their needs. Any charges therefor are to be predicated on a charitable and non-profit basis, and no part of the income or assets of the corporation will ever be distributed to any individual; and in the event of dissolution, no part of the property shall be distributed to any individual or organization created for profit, but shall be distributed to the Air Force Aid Society, if in existence, otherwise, distribution shall be made to another charitable organization which is exempt for federal tax purposes.

Those eligible to reside in the home, as stated in the institution’s by-laws, are retired Air Force officers, their spouses and dependents, and their widows. Widows of reservists are admitted if the reservist was killed on active duty, or a career reservist retired from the service after 20 years of active duty. As a matter of actual operating policy, all branches of the service are admitted to the home, and the composition of the residents as related to the branches of service shows 71% Air Force, 22% Army, and 7% Navy and Marine. The ratio of women to men is 2 to 1, and the average age is approximately 70 years. A person must be 62 years of age to enter the home and residents are composed of 35% officers, 30% spouses, 20% widows, and 8% dependents. The Foundation requires a deposit of $500 for one person and $750.00 for a couple from all prospective residents to insure that they are placed on the waiting list for admission, there being some 482 prospective residents on the waiting list who have paid the required deposit. The Foundation then requires the payment of a life-care or entrance fee ranging from $11,000.00 to $26,-500.00. After admittance, the residents are then charged a monthly service charge ranging from $203.70 to $386.40, all higher prices being for the garden apartments. All funds received by the Foundation are used for its operation and no private profit inures to any person. The Foundation has operated at a loss each year except for its first year. Nevertheless, the evidence shows that the Foundation has paid off a note to Frost National Bank in the amount of $1,000,000.00 and has repaid $160,000.00 on a note to Banker’s Life Insurance Company. According to testimony offered by the Foundation, no eligible person seeking admittance has ever been turned down or, after admittance, been discharged for inability to pay, and potential residence are so advised by literature distributed throughout the Air Force. A fellowship fund has been built up over the years from donations to take care of persons with financial needs. Testimony is present that there is a policy that no less than one-third of the residents be persons receiving charitable assistance.

However, as developed from the facts, during 1972 through 1975 an average of only 5% of the monthly maintenance fees were waived by the Foundation and an average of only 5.48% of the life-care or founders fees were waived. As to the nursing home, which furnishes limited care, during the period there was a total of 77 admissions to the nursing home of which three were persons receiving some assistance from the Foundation. Regarding the testimony that indigent residents are solicited, the only testimony justifying the small number of persons actually receiving charitable assistance is from the administrator saying that pride would not permit others to come forth and apply.

The special issues to sustain the Foundation’s theory that it was entitled to an exemption as a purely public charity were submitted to the jury without objection. The issues, together with the jury’s answers thereto, are as follows:

“ISSUE NO. 1
“Do you find from a preponderance of the evidence that during the years 1972, 1973, 1974 and 1975 Air Force Village Foundation, Inc. dispensed its aid to those in sickness or distress without regard to the poverty or riches of the recipient?
“Answer ‘It did’ or ‘It did not,’ with regard to each year.
“Answer: 1972 IT DID
1973 IT DID
1974 IT DID
1975 IT DID
“Do you find from a preponderance of the evidence that Air Force Village Foundation, Inc. is bound by its charter and by-laws to dispense such aid to those in sickness or distress without regard to the poverty or riches of the recipient?
“Answer: ‘It is so bound’ or ‘It is not bound,’ as to each year.
“Answer 1972 IT IS SO BOUND
1973 IT IS SO BOUND
1974 IT IS SO BOUND
1975 IT IS SO BOUND
“ISSUE NO. 3
“Do you find from a preponderance of the evidence that Air Force Village Foundation, Inc. is a ‘purely public charity’ as that term is defined by law?
“You are instructed that by the term ‘purely public charity,’ is meant an institution that makes no gain or profit; accomplishes ends wholly benevolent; and benefits persons indefinite in numbers and in personalities, by preventing them, through absolute gratuity, from becoming burdens to society and to the state. To be a ‘purely public charity,’ it must dispense its aid without regard to the poverty or riches of the recipient and be bound by its charter and/or by-laws to do so.
“You are further instructed, however, that in applying this definition to the facts and evidence in this case, you may consider the following:
“1. The fact that paying residents predominate over those unable to pay does not detract from the charitable nature of the service rendered;
“2. Reliance upon percentages of paying residents versus non-paying residents should not be the controlling factor;
“3. Charity is something more than mere alms-giving or the relief of poverty and distress;
“4. The ultimate consideration should be based upon an evaluation of the total operation of the institution engaged in humanitarian activities whose services are rendered at cost or less and which are maintained to care for the physical and mental well-being of the recipients. By that total operation the institution must assume, to a material extent, that which otherwise might become the obligation or duty of the community or the state.
“Answer: ‘It is a purely public charity’ or ‘It is not a purely public charity,’ as to each year.
“Answer 1972 IT IS NOT A PURELY
PUBLIC CHARITY
1973 IT IS NOT A PURELY
PUBLIC CHARITY
1974 IT IS NOT A PURELY
PUBLIC CHARITY
1975IT IS NOT A PURELY
PUBLIC CHARITY

Evidently, the first two issues are a submission of elements contained in the wording of Section 7, Article 7150, Tex.Rev.Civ. Stat.Ann., and the last is a submission of the Supreme Court’s overall interpretation of the Section as set out in City of McAllen v. Evangelical Lutheran Good Samaritan Society, 530 S.W.2d 806 (Tex.1975).

The Defendant’s first group of points present the legal proposition that as a matter of law the evidence conclusively proved that during the years in question the Defendant was a purely public charity and entitled to the exemption under Article 8, Sec. 2, of the Texas Constitution, and Section 7 of Article 7150, Tex.Rev.Civ.Stat. Ann. We are therefore required to examine the record for evidence which supports the jury’s finding to the last issue while ignoring all evidence to the contrary.

Certain ground rules applying to purely public charities are noted. Exemption statutes are not favored since they create exceptions to the primary goal of equality in taxation; they throw a greater burden on other taxpayers. Thus, the exemption enactment is to be strictly construed against the party claiming it, and the burden of proof is placed on the potential taxpayer to show by facts that its property comes clearly within the reach of the exemption. Santa Rosa Infirmary v. City of San Antonio, 259 S.W. 926 (Tex.Comm.App.1924, jdgmt. adopted); River Oaks Garden Club v. City of Houston, 370 S.W.2d 851 (Tex.1963); 21 Texas Practice (Howell), Property Taxes, Sec. 4 (1975).

Up to the present, institutions in the health-care field have always claimed the exemption as being purely public charities under Section 7 of Article 7150, Tex.Rev. Civ.Stat.Ann., and the general requirements under the Statute have become established. However, the different types of care provided in the individual institutions have sometimes produced different results. See Hartt, “Ad Valorem Taxes and NonProfit Health-Care Facilities,” 39 Tex.B.J. 864 at 868 (1976). As pointed out in this article, there is considerable uncertainty in the field where institutions similar to Air Force Village Foundation, Inc., have attempted to claim the exemption, the exemption being favored when it was determined that the institution was primarily a nursing home rather than when it was determined that it was a retirement community. See Annot. 45 A.L.R.3d 610.

The same held true in this State at least up until the time of the decision in City of McAllen v. Evangelical Lutheran Good Samaritan Society, supra. Each of the last cases that have dealt with a retirement community facility has emphasized that the operation was primarily for the benefit of the members and not for the benefit of society and the exemption has been denied. See Hilltop Village, Incorporated v. Kerrville Independent School District, 426 S.W.2d 943 (Tex.1968); City of Waco v. Texas Retired Teacher Residence Corporation, 464 S.W.2d 346 (Tex.1971); Hilltop Village, Inc. v. Kerrville Independent School District, 487 S.W.2d 167 (Tex.Civ.App.-San Antonio 1972, writ ref’d n. r. e.); Challenge Homes, Inc. v. County of Lubbock, 474 S.W.2d 746 (Tex.Civ.App.—Eastland 1971, writ ref’d n. r. e.). However, it is not so much what was decided in those cases as it is as to how far their holdings have been modified by the Supreme Court in City of McAllen v. Evangelical Lutheran Good Samaritan Society, supra. There, the Court was dealing with a nursing home where all patients who were admitted were under a doctor’s care. The home operated at a loss, but even when profits were made, they would go for mortgage payments, debt service, capital improvements, and other activities directed at sustaining and furthering the Society’s benevolent activities. The Court reaffirmed its position that the proscription in this State against an institution’s realization of gain or profit refers only to gain or profit by private individuals or the accrual of distributable profits. Nor is the exemption to be defeated by the requirement that patients able to pay are required to pay for the services rendered. The Court emphasized the fact that no person who applied for treatment or care at the nursing home was denied admission, or was discharged because of poverty or riches, and the fact that paying patients predominated over those unable to pay would not detract from the charitable nature of the service rendered. Further, the record justified the trial Court’s finding that the screening requirements being used by that institution were not used to screen out charity patients. The ■ Court recognized that today most indigent patients are entitled to various benefits from wide-ranging assistance programs. It redefined the absolute gratuity requirement as meaning that such charity as was extended, that is, the portion of the cost not covered by government funds, must be of an “unconditional nature.” Of most importance to the disposition of the present case was the Court’s conclusion which is as follows:

“ * * * The ultimate consideration then, should be based upon an evaluation of the total operation of the institution engaged in humanitarian activities whose services are rendered at cost or less and which are maintained to care for the physical and mental well-being of the recipients. By that total operation the institution must assume, ‘to a material extent, that which otherwise might become the obligation or duty of the community or the state.’ * * * ” (p. 810).

As seen, Special Issue No. 3 submitted this “ultimate consideration” to the jury and the fact finder answered the issue to the effect that it was not a purely public charity.

The evidence supported that finding. The witnesses testifying for the Defendant, insofar as the operation of the institution was concerned, were all interested witnesses. While uncontradicted by other witnesses, there are circumstances present which tend to cast suspicion thereon. Also, different conclusions can with reason be arrived at by reasonable minds from the testimony. 3 McDonald, Texas Civil Practice, Sec. 11.-28.6, p. 247 (1970). Although the charter of the organization mandates that at least one-third of the residents be persons in need of charity, the facts remain that over a period of several years, the organization has been unable to attract persons in need of charity to become residents of the home. The jury was entitled to become skeptical of any real effort to attract these people. As to the true recipients of the benefits made available by Air Force Village, most of the residents of Air Force Village were high-ranking officers and their spouses or widows. The attraction in fact was made to members of a class of persons who would normally be considered as not being in need of any charitable assistance. That fact alone would not prevent an institution from being a charity but would be a factor to be considered by the jury. The amount of charity administered by Air Force Village was small opposed to the sums lost by the taxing authorities as tax revenue. The percentage of residents receiving charity was extremely little when compared to the percentage of residents paying the full charges assessed by the organization. These facts could have led the jury to form the reasonable conclusion that Air Force Village was an institution structured as a comfortable retirement home for retired officers and their spouses, and was not an institution structured in either form or operation so as to meet the special residential requirements of elderly persons under distress circumstances. The jury could therefore believe that the institution, from its organization and its actual operation, did not assume to a material extent any obligation or duty of the community or the State. The Defendant failed to establish as a matter of law that it was a purely public charity and the first group of points are overruled.

Next, we are of the opinion that no conflict exists between the jury’s affirmative answers to Issues Nos. 1 and 2, and the negative answers made to Issue No. 3. The findings to Issues Nos. 1 and 2 established only a portion of the necessary elements to establish a purely public charity. Another element such as the total operation was necessary. The point asserting such conflict is overruled.

The Defendant next complains of the exclusion by the trial Court of its Exhibit No. 74 which purported to document what it would cost the United States Government to furnish the care that was provided by the nursing wing of Air Force Village. It did not attempt to specify care furnished to residents receiving charitable assistance. A large part of the residents of the retirement home were entitled to medical care and treatment at the United States Government hospitals in San Antonio as retired military personnel, or as widows or dependents. We fail to see where the exhibit would have shown how much the Defendant was relieving a burden that otherwise would be the obligation of the State or the community. The point is overruled.

The Defendant called the Administrator of the Southwest Texas Methodist Hospital who testified that the hospital was exempt from taxation as a purely public charity. The Defendant then attempted to determine what percentage of free care was offered by the hospital. The testimony was excluded. In a bill of exception it was shown that the percentage of non-paying patients amounted to approximately 4% of its total annual budget in terms of charity care with an equal amount for bad debts. We perceive no error in excluding the evidence. Whatever percentage of free care that might have been furnished by a different type of institution would not have been instructive of the tax status of Air Force Village.

The Defendant’s final point complains of argument of counsel. We have reviewed the argument and the complaint is overruled.

The judgment of the trial Court is affirmed.


author: PHILLIPS, Chief Justice.

text:
    AMERICAN FOUNDERS LIFE INSURANCE COMPANY, Appellant, v. Carl D. WEHLING, Appellee.
    No. 12662.
    Court of Civil Appeals of Texas, Austin.
    Jan. 25, 1978.
    Rehearing Denied March 1, 1978.

      E. Hazen Woods, Jr., Alvis & Carssow, Austin, for appellant.
    Joseph Latting, Robinson, Felts, Meyers, Starnes & Latting, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellee went to work for appellant insurance company in 1955 and served continuously as an agent and manager of an agency until 1969 when he was fired. Ap-pellee then brought this suit against appellant to recover sums of money that he claims he was entitled to for business that he produced before he was fired.

The trial court pursuant to trial before a jury granted judgment for appellee and appellant has duly perfected its appeal to this Court.

We affirm.

Appellant is before us on thirty-three points of error which can be grouped into several principal questions for our determination.

The first question is what was the contract between the parties? Appellant and appellee had entered into a series of contracts during the years of their association. A letter contract dated January 10, 1969 epitomizes the contractual relationship between the parties and forms the basis of this lawsuit. The preamble to the letter is as follows: “This letter is to summarize and clarify the various addenda, supplements and amendments to your agent’s and manager’s contracts. In the event of conflict of interpretations of said contracts, the interpretations as defined in this letter will prevail.” The pertinent parts of this letter contract are paragraphs 1, 3, 7 and 8 and are as follows:

“1. . . . you [Wehling], as a charter agent with the Company, are to receive 5% lifetime service fees on all production credited to your agent’s account as long as you remain under contract with American ' Founders Life Insurance Company.
“3. . . . you are to receive credit for 2% service fee on the premium produced by former agents while serving as an agent within your agency. .
“7. ... in the event you return to personal production and give up your position as manager of an agency, the Company will continue to pay to you on your personal production such commission and overrides consistent with your manager’s and agent’s contracts and the terms of this letter; however, the Company would not be obligated to pay you an expense allowance of any nature.
“8. So long as you meet the required volume of production referred to in your agent’s contract and continue to meet the terms as defined in Section I, paragraph III, of the agent’s contract, ‘full time agent’ status will be accorded you.”

Pursuant to trial, the jury found that appellee could have and would have maintained the required volume of production of $50,000 per year referred to in paragraph 8 from June 23, 1969 until the present, but for appellant’s refusal of his offer to do so. The jury found $52,250 to be the difference between what appellant has received and what he would have received if his contract had not been terminated by way of compensation for personal insurance production, overrides on such production and compensation for the production of agents in his agency between June 23, 1969 and the present, taking into consideration only business in force as of June 23, 1969; it found $21,000 as future compensation based on past personal insurance production which, in reasonable probability, he would receive in the future and it found $22,100 as future compensation for past insurance production for agents in his agency which, in reasonable probability, he would receive in the future referred to as- 2% manager’s service fee.

The jury also found that appellee’s agency had five full-time agents as of June 30, 1969; that the NQA persistency, by lives, of appellee’s agency was at least 85% as of June 30, 1969; and, further, it found that appellant had not acted in good faith when it refused to make payments to appellee based on a percentage of premiums collected on policies issued by appellee and agents in his agency on policies after the first ten years of each policy.

Following the termination of the contractual relationship, the Company made periodic payments to Wehling in accordance with the Company’s interpretation and construction of the contract, paying approximately $35,000 to or on behalf of Wehling from that date until the time of trial, and the Company further acknowledged a continuing obligation to make payments, based upon that construction of the contractual agreements until June 23, 1979. Basically the Company paid: a five percent “renewal commission” of premiums received by the Company during that period of time on policies written by Wehling while an agent for the Company, within the first ten years of the life of each policy; and, a “manager’s service fee” which was vested pursuant to the written agreement for a period of not to exceed the first ten years of the life of policies written by agents in Wehling’s agency. In fact there is no dispute but that the $35,000 has been paid and Wehling himself projected an additional $8,750 would be paid under this method of calculation between the time of trial and June 23, 1979. With respect to these amounts, there is no controversy.

The Company denies that it owes any more than the amounts paid through the date of trial and such amounts as might become due under such calculations between the date of trial and June 23, 1979.

We note that all of the amounts sought in this cause and all of the amounts awarded were for monies earned by appellee before he was fired. Some of the amounts awarded by the trial court are for compensation that was payable in the future; however, none of it was referable to business that was to be produced in the future. All was for business already produced by appellee for the Company.

Contrary to the terms of the agent’s contract of April 1, 1965, appellant contends that the term “lifetime service fees” has no meaning within the insurance industry and introduced expert testimony to that effect; however, the plain wording of the contract in this respect is clear. Lifetime service fees, as we understand the term used in the contract, are percentage payments made after the end of the period for payment of renewal commissions. The jury, in effect, found from the evidence that “lifetime” refers to the duration of the policy and is not necessarily confined to the ten-year period urged by appellant. Moreover, even if appellant’s contention were to cast some doubt upon the meaning of the phrase, such doubt is to be resolved against the party who prepared the document. Board of Regents of the University of Texas v. S & G Construction Co., 529 S.W.2d 90 (Tex.Civ.App.1975, writ ref’d n. r. e.).

Paragraphs 1 and 3 of the contract set forth the basis on which appellee was to be paid if he were an agent and if he were serving as a manager. Paragraph 7 of the agreement makes it clear that should appel-lee cease being a manager and return to writing insurance himself, the Company would continue to pay him on his personal production such commissions and overrides consistent with his manager’s and agent’s contracts. However, the Company would not be obligated to furnish him any expense allowance.

Paragraph 8 makes it clear that so long as appellee met a required volume of production, he would be accorded the status of a full-time agent.

It is appellant’s position that in spite of the fact that appellee could have maintained the required volume of production as set forth in paragraph 8 (and the testimony amply bears this out), the Company had the right to fire him without any reason. We cannot agree.

This brings us to the question of whether the trial court correctly held that proof by appellee of future performance was unnecessary under the agreement set out above in that appellant had breached its agreement with appellee, and furthermore, that appellant had prevented performance by appellee.

Appellant contends that there was no finding by the jury that appellee would have continued to meet the requirement of $50,000 annual insurance production from the time of the trial and into the future so as to bring him under the terms of paragraph 8 of the contract. This was the required amount of production set out in one of the contracts forming a part of the letter contract, supra, and referred to in paragraph 8.

It is quite apparent from the record before us that there has never been a serious question that appellee could have and would have produced the required $50,000 per year volume of insurance. The record is clear that he had produced more than twenty times that amount the previous year and even appellant’s senior vice president and director of agencies readily admitted that appellee could have produced $50,000 of business annually without any trouble.

Appellant, through its own action, prevented appellee from complying with the terms of the contract thus permitting ap-pellee to recover under the terms of the contract as if the acts in question had been performed. Smith v. Lipscomb, 13 Tex. 532 (1855); Hearne v. Garrett, 49 Tex. 619 (1878); Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744 (1937); Sargent v. Highlite Broadcasting Co., 466 S.W.2d 866 (Tex.Civ.App.1971, no writ).

The next question for our consideration is whether the trial court correctly entered judgment based on a letter to a bank setting out appellee’s projected earnings with appellant Company prepared by appellant’s vice president and director of agencies. This exhibit forms the basis of the award of damages, and appellant claims it was improperly admitted because it contained the following sentence: “These projections, of course, are contingent upon Mr. Wehling’s remaining as an employee of our company and would be altered considerably if he left the employment of American Founders Life Insurance Company.” Appellant does not contend that the figures contained in the exhibit are incorrect. Indeed, appellant’s vice president testified that the figures contained therein were accurate. In view of our holding that future performance on the part of appellee under the contract would be presumed under the facts before us, the admission into evidence of the letter naturally followed.

Next, we come to the question of whether the trial court correctly awarded damages to appellee in the sum of $10,500 for a manager’s progress allowance and the value of a trip appellee had won.

Appellant promised appellee a bonus of $10,000 if he met certain standards. Appellant’s vice president testified that two letters were sent to appellee to “motivate him.” Appellee, apparently, was entitled to the bonus of $10,000 if he had five full-time agents in his agency on June 30, and if he had met a certain minimum gross production from his agency. It is uncontested that the gross production minimum was met. The appellant Company, however, denied that he had five full-time agents in his agency, and produced testimony to this effect. Appellee, on the other hand, testified that he did have five full-time agents at this time. The jury found that appellee did have five full-time agents and we uphold this finding under the evidence. Nor are we impressed with appellant’s contention that one of its employees, a Mr. Dodson, should have been allowed to testify that after appellee was fired, he, Mr. Dodson, went to San Antonio where one of appel-lee’s agents told Dodson that he (the agent) did not intend to be a full-time agent. Ap-pellee had objected on the ground that the testimony was hearsay, and it was exclud- . ed.

Appellant contends that the testimony should have been admitted as a declaration against interest. We hold that the evidence was correctly excluded. In the first place, it was never demonstrated that such a statement, if made, would have been against the interest of the party making it. In the second place, appellant failed to show that the agent was unavailable to testify. It is essential to demonstrate that the witness is unavailable before the rule concerning declaration against interest becomes operative. Liberty Mutual Insurance Co. v. Heard & Jones Drug Stores, 446 S.W.2d 911 (Tex.Civ.App.1969, no writ). Also see 2 McCormick & Ray, Texas Law of Evidence § 1003 (2d ed. 1956).

We also uphold the jury’s finding that appellee had fulfilled the third requirement for the bonus, i. e., that his agency had an 85% persistency rating. Appellee testified that he believed his agency did have 85% persistency and the jury so found. Appellant had testified that appellee had only an 84.6% persistency.

As to the question of the $500, which is the agreed value of the trip appellee had won, the trial court was correct in making this award to appellee in spite of appellant’s contention that he was no longer employed by the Company at the time when the trip was to be made.

We also hold that the trial court correctly refused to set aside the jury’s answer with respect to special issue number 5 in which it refused to find that appellant acted in good faith. In this regard appellant complains that the trial court erred in excluding from evidence a letter from a New York consulting firm which raised the question of the validity of certain test scores made by applicants for agent positions. Appellant attempted to introduce this letter over appellee’s objection that it was hearsay. Appellant argues that it should have been admitted as relevant to the issue of the state of mind of appellant in firing appellee.

Nowhere in appellant’s bill of exceptions does appellant’s vice president testify that the letter had anything whatsoever to do with his attitude toward appellee. The next problem with appellant’s position is that the exhibit was offered without any limitation whatsoever. If appellant was offering the letter for the limited purpose that it now asserts, it should have done so at the trial, and the failure to make the limited offer then is fatal over appellee’s objection of hearsay. Gottschald v. Reaves, 457 S.W.2d 307 (Tex.Civ.App.1970, no writ).

Finally, we come to the question of whether or not the trial court correctly awarded appellee the present value of amounts he had already earned with appellant Company, which amounts were to have been paid in the future.

The applicable rule here is that a party who is obligated by contract to make monthly payments of money to another and when that party absolutely repudiates the obligation without just excuse, the obligee is entitled to maintain his action in damages at once for the entire breach and is entitled in one suit to receive in damages the present value of all that he would have received if the contract had been performed and he is not compelled to resort to repeated suits to recover monthly payments. Pollack v. Pollack, 39 S.W.2d 853 (Tex.Com.App.1931); and on motion for rehearing, (Tex.Com.App.1932) 46 S.W.2d 292; Universal Life and Accident Insurance Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405 (Tex.1937).

Appellant is clearly in breach of its obligations to pay periodic sums to appellee, and the jury refused to find that the Company acted in good faith in failing to make these payments. In our opinion, this finding is supported by the evidence.

The judgment of the trial court is in all things affirmed.

Affirmed.

      . NQA persistency, roughly, means the premiums being collected.