text:
    Dennis Ervin AULDRIDGE, Appellant, v. The STATE of Texas, Appellee.
    No. 51472.
    Court of Criminal Appeals of Texas.
    March 3, 1976.
    Frank W. Sullivan, III, Fort Worth, for appellant.
    Tim Curry, Dist. Atty. and Marvin Collins, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of aggravated robbery. The appellant waived a jury trial and entered a plea of guilty before the court. The court assessed punishment of imprisonment for 7 years.

The only ground of error presented by counsel is that: “The trial judge erred in not impaneling a jury to determine appellant’s competency to stand trial in accordance with Tex.Code Crim.Proc.Ann. Art. 46.02(2)(g)(l).” There is no contention on appeal that the appellant was insane at the time he committed the offense.

“It is well settled that the conviction of an accused person, while he is legally incompetent to stand trial, violates due process. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Perryman v. State, 494 S.W.2d 542 (Tex.Cr.App.1973). Due process requires a separate hearing to determine competency to stand trial. Pate v. Robinson, supra. While Pate would not require a jury trial on such issue, Texas law does. Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968); Cavender v. State, 515 S.W.2d 277 (Tex.Cr.App.1974).
“In Noble v. State, 505 S.W.2d 543 (Tex.Cr.App.1974), this court said:
“ ‘Recently, in Ainsworth v. State, Tex.Cr.App., 493 S.W.2d 517 (1973), we discussed what is necessary to bring into play the due process requirement of a separate hearing:
“ ‘ “An accused is not required to prove actual insanity or incompetency before the trial judge is required to conduct a separate hearing on the matter. If this were the rule, the separate hearing procedure would become meaningless. However, it is necessary that evidence come before the court, from some source, of sufficient force to create in the court’s mind reasonable ground for the judge to doubt the competency of the accused to stand trial. Once this occurs, the court should conduct a hearing out of the presence of the jury to determine whether or not there is in fact an issue as to the competence of the accused to stand trial.”
“ ‘Once the separate inquiry is made out of the jury’s presence, the due process requirement is met. If the trial court determines that no such issue exists, his decision will not be disturbed in the absence of abuse of discretion. However, if the issue is found to exist, then Texas law requires the court to halt the proceedings and empanel a separate jury to determine the issue uncluttered by the evidence relevant only to the question of guilt or innocence. Ainsworth v. State, supra; Vardas v. State, Tex.Cr.App., 488 S.W.2d 467; Hefley v. State, Tex.Civ.App., 480 S.W.2d 810; Townsend (sic) v. State, supra; Article 46.02, V.A.C.C.P. . . .’” Bonner v. State, 520 S.W.2d 901 (Tex.Cr.App.1975).

The victim of the robbery, which occurred in a liquor store, testified that he had known the forty-year old appellant for longer than ten years prior to the robbery. Another eye witness who had known the appellant for a number of years also testified about the robbery. The appellant used a shotgun to obtain $200 in the robbery.

After being fully admonished the appellant entered his plea of guilty on June 9, 1975. He had filed a motion requesting that he be granted probation. He testified in support of that motion, and also testified at length concerning his prior work record and medical history. He testified that he had received treatment for mental illness on several occasions; he had been in military service; he had attended a trade school; he had worked at a number of different jobs for a large aircraft manufacturer for over ten years. One of his jobs was as a technical writer for this firm.

The appellant said that he did not remember committing the offense but he was sure it happened if the witnesses whom he had known for many years said that he had committed the robbery, but in answer to a question put to him by the court the appellant testified that he was not making the contention that he was “insane” at the time of trial. A well drawn handwritten motion demanding a speedy trial was admitted in evidence; the appellant acknowledged that he had authored the motion while he was in jail.

On March 13, 1975, the appellant’s court-appointed attorney, prior to trial, filed a motion stating that the appellant appeared to be insane and incapable of effectively assisting his attorney in the defense of the pending charge and requested that a psychiatrist be appointed to examine the appellant. On the same day the motion was filed the trial court ordered that appellant be examined by a psychiatrist and a psychologist. The appellant was examined by a psychiatrist and by a consulting psychologist. There is in the record the psychologist’s report concerning the battery of tests which he administered to the appellant and his evaluation of those tests. There is also the written report of the psychiatrist who examined the appellant. This report, which is dated May 5, 1975, after reciting the appellant’s medical history obtained from the appellant and other sources, stated that the appellant was suffering from a chronic brain syndrome secondary to cardiac arrest and that this condition is superimposed on a chronically border line psychotic individual. The psychiatrist concluded: “I believe this individual knows the nature and quality of his acts and is able to distinguish right from wrong except . . . where he is under the influence of alcohol . . .” The psychiatrist was a witness at the trial and affirmed his conclusions made in the earlier report. He testified at length, but unfortunately he was not interrogated specifically as to whether in his opinion the appellant was competent to stand trial. However, his testimony in no way indicated that the appellant was not competent to stand trial.

The appellant’s wife and sister testified concerning the appellant’s past conduct and his inability to control himself when drinking alcoholic beverages. They also testified that he had many “black outs” and lapses of memory.

At the time of trial, defense counsel stated to the court that he was of the opinion the appellant was sane both at the time of the commission of the offense and at the time of trial.

This case was tried before the court and not before a jury. The record reflects that the trial court made a lengthy inquiry to determine if the appellant was competent to stand trial. After hearing all of the evidence, the judge specifically found that no issue of appellant’s competency to stand trial was raised. He stated he had no doubt that the appellant was sane at the present time. We find that the trial judge did not abuse his discretion in so finding and in not impaneling a jury to determine the appellant’s competency. The appellant was not denied due process or any right accorded him by the statute upon which he relies.

We have considered the appellant’s pro se brief and find his contentions to be without merit.

The judgment is affirmed.

Opinion approved by the Court.

      . Article 46.02, Sec. 2(g)(1), the statute applicable at the time of trial, provided:
      “(g) If trial is without a jury. (1) If the trial is before the court without a jury and if, after commencement of a trial on the merits and before the return of a verdict, there arises in the mind of the court from any cause, a reasonable doubt as to the present sanity of the defendant, the court shall suspend the proceedings and shall without unnecessary delay impanel a jury to determine the issue of the present sanity of the defendant.”


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Alonzo Gene HUGHES aka Lonzo Bill Carpenter, Appellant, v. The STATE of Texas, Appellee.
    Nos. 51614, 51615.
    Court of Criminal Appeals of Texas.
    March 3, 1976.
    Barry P. Helft, Dallas, for appellant.
    Henry Wade, Dist. Atty., Harry J. Schulz, Jr., and David Schick, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Appellant waived trial by jury and entered pleas of not guilty before the court to two indictments charging him with delivering heroin. Upon conviction, punishment was assessed at seven (7) years in each case.

Appellant’s court-appointed counsel has filed a brief in each case which states that after a thorough examination of the appellate records counsel has concluded the appeals are wholly frivolous and without merit and there is nothing in the records which might arguably support the appeals. A copy of counsel’s brief and the appellate records have been delivered to appellant, and appellant has been advised of his right to file a pro se brief. No such brief has been filed.

After reviewing the record in both appeals, we must disagree with counsel’s conclusion concerning the frivolous nature of the appeals because we find error in both necessitating reversal.

The indictment in Cause Number 51,615 alleged that appellant delivered heroin to Sam Allen on November 6, 1974. The indictment in Cause Number 51,614 alleged the appellant delivered heroin to Allen on November 8, 1974. Allen, a Garland police officer, testified that on November 6, 1974, while he was working undercover appellant delivered to him an aluminum foil package which contained white powder. State’s Exhibit # 2 was identified by Allen as the substance delivered on that date. Likewise, Allen testified that on November 8, 1974, while Allen was still in his undercover status, appellant delivered to him an aluminum foil package containing a brown powdery substance. Allen identified State’s Exhibit # 3 as the substance delivered to him on the latter date.

To prove that State’s Exhibits # 2 and # 3 contained heroin, the State offered in evidence State’s Exhibits # 4 and # 7. These two exhibits were written stipulations of evidence signed by appellant, his attorney and the prosecutor. Exhibit. # 4 was a stipulation of the testimony of E. H. Foerester, a chemist with the Dallas County Crime Laboratory, that after examining Exhibit # 3 he found it to contain heroin. Likewise, Exhibit # 7 was a stipulation of Foerester’s testimony that heroin was found in Exhibit # 2.

Article 1.15, Vernon’s Ann.C.C.P., provides that in cases where trial by jury is waived the evidence may be stipulated “if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court.” The statute further provides: “Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.”

An examination of the records in these cases fails to reveal that appellant waived in writing his right to the appearance, confrontation and cross-examination of the chemist, E. H. Foerester. In fact, the contrary appears. Each record contains an instrument denominated (among other things) “Agreement to Stipulate.” In each instrument the words “and further waives the appearance, confrontation and cross-examination of witnesses, and further consents to the introduction of testimony by affidavits, written statements of defendant or of witnesses, and any other documentary evidence in support of the Judgment of the Court. . . .” were expressly stricken out. No other written waivers as required by Article 1.15, supra, appear in the record.

The only evidence in the records to show that Exhibits # 2 and # 3 contained heroin was the stipulated testimony of Foeres-ter. Allen did mention the word “heroin” on two occasions, but he was not specifically referring to Exhibits # 2 or # 3 when the references were made. Appellant’s evidence was to deny that the transactions occurred, claiming he never met Allen until after the dates alleged in the indictments.

Since Exhibits # 4 and # 7 (the stipulated testimony of Foerester) were not in compliance with Article 1.15, supra, they cannot be considered as evidence. When so considered, the evidence in the light most favorable to the convictions shows that appellant delivered to Allen a white powder substance on November 6, 1974, and a brown powdery substance on November 8, 1974. There is no admissible evidence in the records to show that either substance contained heroin. The failure properly to prove that the substances delivered were heroin necessitates reversal of these convictions.

The judgments are reversed and the causes remanded.

ODOM, J., concurs in the result.

      . In view of our disposition of this case, we need not discuss whether a chain of custody of Exhibits # 2 and # 3 was established.

      . This statute is mandatory. See Elder v. State, 462 S.W.2d 6 (Tex.Cr.App.1971).

      .Compare Rangel v. State, 464 S.W.2d 858 (Tex.Cr.App.1971).


author: DOUGLAS, Judge.

text:
    Richard Wayne THOMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 51031.
    Court of Criminal Appeals of Texas.
    March 10, 1976.

      Harold J. Laine, Jr., Port Arthur, Walter M. Sekaly, Beaumont, for appellant.
    Tom Hanna, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for burglary. Appellant was found to be an habitual offender and was sentenced to life imprisonment.

Appellant’s sole contention is that the evidence used against him was obtained as the result of an illegal arrest and search.

On the morning of March 7, 1974, at about 1:00 a. m., appellant and his brother were walking along Lewis Drive in Port Arthur. This was a high crime area where many prowlers had been recently reported. Appellant was carrying what appeared to the officers as a woman’s type suitcase. Officers Oakes and Moye of the Port Arthur Police Department stopped the two and asked them for some identification. When appellant gave his name Officer Oakes recognized it as that of one who had been mentioned by other officers. Appellant told him that he had been convicted for burglary.

After stopping them, the officers saw that appellant was carrying a blue suitcase with one metal tag reading “Western Electric Company” and a second tag bearing the name of Mrs. Irene Taylor, Beaumont, Texas. Appellant told the police that he had found the suitcase along the side of the road in Baytown. He gave the officers three different addresses where he lived and “he didn’t know where he was going.”

The officers arrested the appellant and his brother and took them to the police station. At the station the officers opened the suitcase and found two desk telephones.

Later that morning a burglary was discovered at Lee Elementary School in Port Arthur. A blue suitcase containing two demonstration telephones belonging to Southwestern Bell was reported stolen. The burglary took place from two to four blocks from where the appellant and his brother were arrested. The appellant’s fingerprints were found outside a broken window used as an entrance by the burglar.

A police officer may make an investigatory stop under appropriate circumstances even though the officer has no probable cause for arrest. An officer may have specific and articulable facts which, in the light of his experience and general knowledge, reasonably warrant such a stop. Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Article 14.03, V.A.C.C.P., authorizes a warrantless arrest of a person found in a suspicious place and under circumstances which reasonably show that the person has been guilty of some crime. Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976). See Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974). The location and time of the appellant’s detention by the police coupled with the fact that the suitcase bore obvious evidence that it belonged to someone other than the appellant and his inability to explain satisfactorily his possession of the suitcase were enough to warrant the arrest of the appellant under Article 14.03, supra. See Williams v. State, 489 S.W.2d 614 (Tex.Cr.App.1973); and Clark v. State, 483 S.W.2d 465 (Tex.Cr.App.1972).

In Wood v. State, supra, it is written:

“The Fourth Amendment has been held not to require a policeman who lacks a precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow crime to occur or a criminal to escape. Circumstances short of probable cause for arrest may justify temporary detention for investigation and questioning. Thus, neither tests of reliability demanded for showing of probable cause nor showing of probable cause is required to justify an investigative stop. A brief stop of a suspicious individual in order to determine his identity or to maintain status quo momentarily while obtaining more information may be reasonable in light of facts known to the officer at the time.”

Glenn Allen Thompson, appellant’s brother, testified that they were together when the officers stopped them and that they had found the suitcase and had the suitcase with them and that they had intended to turn it in.

No error is shown; the judgment is affirmed.


author: DALLY, Commissioner.

text:
    Oral Roy CRAIG, Appellant, v. The STATE of Texas, Appellee.
    No. 51176.
    Court of Criminal Appeals of Texas.
    March 10, 1976.
    Hal S. Hudson, Peter H. Murphy, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and James C. Brough and Ted Poe, Asst. Dist. Atty’s., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for carrying a handgun; the punishment assessed, but probated for one year, is confinement in the county jail for 30 days and a fine of $250.

In two grounds of error the appellant urges that the handgun was erroneously admitted in evidence because it was unlawfully obtained as the result of an unconstitutional search and because it was found as the result of the appellant’s custodial interrogation before he was advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The appellant waived a jury trial and was tried before the court on pleas of not guilty of the offenses of driving a motor vehicle on a public road while intoxicated and of carrying a handgun. The cases were tried together with the appellant’s consent. The court found the appellant was not guilty of driving a motor vehicle on a public road while intoxicated.

The facts necessary to the understanding of a discussion of appellant’s grounds of error follow. The appellant, who was alone, drove his pickup truck into the rear end of an automobile on a public street. A police officer came to investigate the collision; although he was of the opinion the appellant was intoxicated, the officer asked the appellant to drive his truck from the street onto a private lot which was only a few feet from the street. The officer explained that he did not move the pickup truck because he was alone and did not want to leave his patrol car unattended near the appellant while the pickup was being moved. The appellant was then placed in the back seat of the patrol car. The officer had some difficulty discussing the collision with the appellant, but during their conversation the appellant asked the officer to get a briefcase containing some valuable jewelry out of his pickup truck. The appellant was under lawful arrest and in custody; the officer had not advised the appellant of his constitutional rights as set out in Miranda v. Arizona, supra, and as required by our statutes. Following the appellant’s request the officer went to the pickup truck; he opened the door on the driver’s side and observed a pistol in plain view on the floorboard partially under the front seat on the driver’s side; he saw the briefcase on the floorboard of the passenger’s side.

The pistol was not recovered as a result of a search. A search implies an examination of one’s premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action. The term implies exploratory investigation or quest. Mere observation does not constitute a search. Haerr v. United States, 240 F.2d 533 (5th Cir. 1957); Turner v. State, 499 S.W.2d 182 (Tex.Cr.App.1973). See also Blassingame v. Estelle, 508 F.2d 668 (5th Cir. 1975); United States v. Williams, 446 F.2d 486 (5th Cir. 1971). The appellant asked the officer to obtain the briefcase containing the valuable jewelry from the pickup truck. It was while the officer was complying with the appellant’s request that the officer saw the pistol in plain view.

The failure of the officer to give the appellant a Miranda warning before the officer found the pistol did not require that the pistol be excluded from evidence. “Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” Miranda v. Arizona, supra.

Here the appellant voluntarily requested that the officer obtain his briefcase from the pickup truck. Certainly the request was voluntary; it was not shown to have been elicited by custodial interrogation. The failure to give the Miranda warning did not render the pistol inadmissible in evidence. The pistol was lawfully obtained and properly admitted in evidence.

The judgment is affirmed.

Opinion approved by the Court.


author: McCLOUD, Chief Justice.

text:
    Scottie H. ASHLEY, Jr., et al., Appellants, v. B. Bryan LEITCH, III, Appellee.
    No. 4851.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 12, 1975.
    Rehearing Denied March 11, 1976.
    Reid A. Rector, Power & Ashley, Irving, for appellants.
    B. Bryan Leitch, III, Dallas, for appellee.
   McCLOUD, Chief Justice.

Plaintiff, B. Bryan Leitch, III, sued defendants, Scottie H. Ashley, Jr., Kenneth D. Reynolds, Robert H. Power, and Bill J. Jones, on a promissory note dated February 27, 1973, in the original principal sum of |40,000, such principal being payable on or before March 1, 1976. Plaintiff alleged that the note gave him the right to either approve a purchaser of the property securing the note or declare the note due and payable in full. He further alleged the property had been sold without his approval and he sought to accelerate payment of the note. Plaintiff’s motion for summary judgment was granted. Defendants appeal. We affirm.

It is undisputed the property in question was sold and that plaintiff did not approve the purchaser.

In a single point of error, defendants contend the note is ambiguous and a question of fact exists as to the intent of the parties. They contend it was the intent of all parties that plaintiff would have the right to approve a purchaser of the property only when such purchaser assumed and became directly responsible to plaintiff for payment of the note.

That portion of the note in question provides:

“It is further agreed that in the event of sale or transfer of the herein described property, the payee reserves the right to approve the purchaser, or of declaring this note due and payable in full.”

The court in A. R. Clark Investment Company v. Green, 375 S.W.2d 425 (Tex.1964) stated:

“This court recognizes that a contract to accelerate the maturity of a debt gives a remedy that is harsh in nature, and provision therefor, in order to be effective, should be clear and unequivocal. See Motor & Industrial Finance Corporation v. Hughes, 157 Tex. 276, 302 S.W.2d 386. In the present case, the promissory notes held by the plaintiffs do clearly provide the payment of the notes may be accelerated in the event of the failure to perform any of the agreements in the 1959 Chattel Mortgage. One provision of this instrument unequivocally states that the personal property of Western Hills Hotel covered by the mortgage should not be sold without the written consent of the plaintiffs. In 1961 Investment Company did sell this property to Weissberg without obtaining the plaintiffs’ written consent. We hold there is no reason why the plaintiffs should not be able to enforce their contractual right and accelerate payment of their notes because of this violation of the chattel mortgage terms.”

The provision of the note under consideration is unambiguous. Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951). The intent of the parties is determined from the note alone. It is the objective, not subjective, intent that controls. Ohio Oil Company v. Smith, 365 S.W.2d 621 (Tex.1963). Citizens Nat. Bank v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003 (1941).

The note clearly provides that in the event the property is sold, plaintiff has the right to approve the purchaser, or declare the note due and payable in full. The purchaser was not approved and plaintiff elected to accelerate payment of the note. This he had a right to do.

The judgment of the trial court is affirmed.


author: WARD, Justice.

text:
    Truman O’NEIL, Individually and d/b/a Mesa Mack Sales, Appellant, v. MACK TRUCKS, INC. and Mack Financial Corporation, Appellees.
    No. 6467.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 31, 1975.
    Rehearing Denied Jan. 21, 1976.

      Renner & Snell, Robert B. Snell, Lamesa, Clark, Thomas, Winters & Shapiro, Donald Scott Thomas, Jr., Barry Bishop, Austin, for appellant.
    Stubbeman, McRae, Sealy, Laughlin & Browder, Harrell Feldt, David K. Brooks, Midland, for appellees.
   OPINION

WARD, Justice.

Mack Trucks, Inc. and Mack Financial Corporation brought this suit to recover on various debts arising from a manufacturer-dealer relationship between Mack Trucks, Inc. and the Appellant, Truman O’Neil. The Appellant defended by contending that the dealership contract was void as it violated the Texas antitrust laws; that a foreclosure sale of thirteen trucks and the method of crediting the sales proceeds violated the Business and Commercial Code; and that certain real property was not subject to foreclosure as it constituted the Appellant’s business homestead. Trial was to the District Court of Midland County without a jury, and judgment was rendered in favor of Mack Trucks and Mack Financial on all issues. We affirm the judgment except as to that part which awarded a foreclosure of a lien on certain Midland County land claimed by the Appellant as his business homestead.

Three separate causes of action arising from the manufacturer-dealer relationship are involved. First, Appellees sued on a promissory note dated July 10, 1970, in the principal amount of $71,364.10 executed by O’Neil in settlement of various debts then owing to Mack Trucks and Mack Financial. Second, Mack Trucks sued on a sworn account in the amount of $13,746.60 for parts sold and delivered to O’Neil. And third, Mack Financial sued on a series of promissory notes executed by O’Neil pursuant to a dealer’s floor plan financial arrangement under which Mack Financial financed thirteen new trucks. These trucks had been repossessed at O’Neil’s request and sold, and Mack Financial sued for the deficiency in the amount of $22,516.01. O’Neil did not deny that he had executed the various notes, nor that he had received the parts made the basis of a sworn open account, and agreed that he has not paid any of these obligations. Defenses hereinafter discussed were raised in the trial Court. The trial Court entered judgment in favor of the two Appellees in the principal sum of $107,626.71 together with the sum of $35,239.79 as interest accrued to the date of judgment and attorney’s fees in the total amount of $14,349.63.

The Appellant’s first point is that the trial Court’s implied finding that the claims did not arise from an illegal transaction under the antitrust laws of the State is contrary to the great weight and preponderance of the evidence.

No findings of fact nor conclusions of law were requested or filed. “When findings of fact and conclusions of law are not requested or filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence.” Seaman v. Seaman, 425 S.W.2d 339 (Tex.1968). Also, it will be assumed by the appellate court that every disputed fact issue that was involved in the case was found by the trial Court in such a way as to support the judgment rendered. Construction and General Labor Union, Local No. 688 v. Stephenson, 148 Tex. 434, 225 S.W.2d 958 (1950); 4 McDonald, Texas Civil Practice, Presumptions on Appeal § 16.10 at 30.

Because of the “great weight” point, the whole trial record has been considered and weighed. O’Neil sold Mack Trucks in Texas for twenty-one years and operated under a written distributorship contract. The territory assigned to him was defined as being the area of the “Distributor’s Primary Sales and Service Responsibility.” This was defined to be that he use his “best efforts actively and vigorously to sell Mack Products, and to promote and develop energetically the potentiality for the sale of Mack Products within the Territory.” There was no provision in the contract that granted any exclusive sales rights in the territory nor restricted O’Neil from selling outside that area.

A contract by which a distributor obtains an exclusive territory for the resale of articles purchased from a supplier, and by which the distributor is given a contractual right to prevent sales by the supplier to others in that territory, violates the antitrust laws of Texas and is unenforceable in the courts. Sherrard v. After Hours, Inc., 464 S.W.2d 87 (Tex.1971). Though there was no competing distributor of Mack Products assigned to the same territory, there was no contract commitment which established that exclusive right. A manufacturer may legally choose to place one distributor in a particular area. Ford Motor Co. v. State, 142 Tex. 5, 175 S.W.2d 230 (1943). The written contract did not violate antitrust law.

The Appellant contends in this regard that in spite of the written terms, there was an understanding and course of dealing between the parties which established the exclusive dealership and territorial restriction. O’Neil’s area was reduced on two occasions over the years, and Mack secured releases of those areas from O’Neil on both occasions. From this, and from other practices, the Appellant interpreted his contract as restricting his sales area and likewise as showing that it was exclusively his own.

Appellees introduced evidence all contrary to the position of the Appellant. It was shown that Mack and other Mack dealers frequently made direct sales into the territory in competition with O’Neil and that all dealers, including O’Neil, regularly sold outside of their own territories. The designated areas of prime responsibility were assigned only to assure adequate coverage in those given areas without being of any binding effect. The implied findings were supported by ample evidence that no exclusive territories had been assigned or created. The first point is overruled.

The Appellant complains of the implied finding of the Court regarding the legality of the foreclosure sale of the thirteen trucks. The point is that the implied finding of the trial Court that the sales of the collateral were commercially reasonable was contrary to the great weight and preponderance of the evidence. In 1970, Mack Financial, at O’Neil’s request and under the terms of its trust receipts, took possession of the thirteen vehicles and disposed of them by private sale to Mack Trucks. No written notice of the proposed sale was given to the Appellant. On the notes involved, the Appellant was credited with $216,137.00 on the repossession. In the present suit, the trial Court allowed a recovery of $22,516.01 as the deficiency remaining on the notes and trust receipts after the foreclosure sale. O’Neil’s argument is that the evidence showed that Mack Financial’s disposition of the collateral was unreasonable under the Uniform Commercial Code as no notice was given of the sale and the sales price was unreasonably low. Section 9.504(c) Tex.Bus. & Comm. Code Ann.

Appellees contend that reasonable notification of the sale was not required because the Mack trucks were of “a type customarily sold on a recognized market” and were within the exceptions set out in Section 9.504(c). This argument is not accepted as the term “recognized market” within the meaning of the U.C.C. is most restrictive. Cases which have considered “used cars” are authority for this ruling. “Thus a ‘recognized market’ might well be a stock market or a commodity market, where sales involve many items so similar that individual differences are nonexistent or immaterial, where haggling and competitive bidding are not primary factors in each sale, and where the prices paid in actual sales of comparable property are currently available by quotation.” Norton v. National Bank of Commerce of Pine Bluff, 240 Ark. 143, 398 S.W.2d 538 (1966); Alliance Discount Corp. v. Shaw, 195 Pa.Super. 601, 171 A.2d 548 (1961); Nelson v. Monarch Investment Plan, 452 S.W.2d 375, 377 (Ky.Appeals 1970).

Appellees next contend that O’Neil waived his right to any notice of the private sale because of his request that Mack Financial repossess the trucks and stop the interest accruing on his notes. While O’Neil might not have wanted to participate in the bidding, he might well have been interested in securing other buyers. There is no showing to the contrary. The argument on waiver is rejected. Under Sections 9.501(c) and 9.504(c) as now written, the problem may not present itself again as waiver will be permitted only if the debtor signs a statement after default renouncing or modifying his right to notification of sale. Reasonable notification should have been given to the debtor of the intended sale of the collateral.

As to the penalty which results when the creditor fails to comply with the repossession and resale requirements, such as the failure to give the required notice, a conflict of authority has developed. One line of cases is to the effect that failure to comply with the notice and other requirements of the Code prohibits the secured party from obtaining any deficiency judgment. The other major line of authority holds that failure to comply does not act as a bar to the recovery of a deficiency judgment, but creates a rebuttable presumption that the value of the collateral equals the amount of the debt, and places the burden of proving fair market value of the sale on the secured party prior to permitting any recovery of a deficiency. United States v. Whitehouse Plastics, 501 F.2d 692 (5th Cir. 1974). After considering the cases, the Fifth Circuit held in that case arising from Texas that absence of compliance with the notice requirement would not act as a bar to recovery of any deficiency but created at most a rebuttable presumption that the value of the collateral equaled the amount of the debt and placed on the secured party the burden of proving that the .fair market value of the goods sold was less than the amount of the debt. This holding is adopted by this Court.

The evidence is next examined to determine if the creditors discharged their burden to rebut the presumption. The evidence shows that O’Neil voluntarily purchased the trucks nine months earlier from Mack Trucks for exactly the same amount as the sales price under examination; that the trucks were then driven from Allentown, Pennsylvania, to Midland, Texas, and were there unsuccessfully displayed for several months by O’Neil for the purpose of resale. The market for new trucks at the time of the repossession was slow and all dealers were overstocked due to fallen economic conditions. After the resale by Mack Financial to Mack Trucks, Mack Trucks itself resold the trucks for a total price of $217,926.83 or only $1,789.83 in excess of the price paid to Mack Financial. These sales were made directly to Mack customers through Mack’s own sales outlets in the ordinary course of business. These last arms-length transactions were not questioned and indicate a reasonable value of the trucks. The presumed finding that the questioned bulk sales price of $216,137.00 was not unreasonably low was justified when compared to the retail sales to individual customers at $217,926.83. The trial Court simply rejected O’Neil’s testimony to the contrary. Appellant’s point is overruled.

The final points complain of the action of the trial Court in permitting a foreclosure of a deed of trust lien on a 4.09 acre tract of land in Midland County. In 1970, O’Neil executed a promissory note in the amount of $71,364.10 payable to Appel-lees, and to secure the note, he gave the deed of trust covering the property in Midland County as well as lots in Lamesa, Texas. One of the defenses offered by O’Neil was that the 4.09 acres constituted his business homestead. The testimony was that he had purchased a 116 acre tract for $75,000.00 in 1965, and the 4.09 acres was then fenced in, paved and a building erected thereon where he thereafter conducted his truck business. O’Neil had been married since 1939, and the business was operated as a sole proprietorship. While there is some evidence that he owned a farm and had certain other interests, a fair review of the evidence is to the effect that O’Neil was a Mack distributor and operated this distributorship on the property in question as his calling or business since 1965. In 1968, he purchased a residence for his family in Midland and thereafter occupied it as his residential homestead. The Appellees’ only real attempt to dispute the issue as to the property being business homestead was their evidence to the effect that the tract was not designated as a homestead with the Assessor-Collector of Midland although the Appellant’s residence was so designated after 1968. Tex.Const. art. VIII, §§ 1-a, 1-b, provide only for the tax exemption for “residence homestead.” This designation for the tax exemption does not determine the business homestead. The urban homestead embraces not only the residence of the family, but also the lot or lots where the head of the family exercises his calling or business. The business homestead is a part of the urban homestead. Purdy v. Grove, 35 S.W.2d 1078 (Tex.Civ.App.—Eastland 1931, writ ref’d); 28 Tex.Jur.2d Homesteads § 34 at 411, and following sections. To preserve the place of business, which is separate and distinct from the home, it is only necessary that the head of the family have a calling or business to which the property is adopted and reasonably necessary, and such property must be used as a place to exercise that calling. Mays v. Mays, 43 S.W.2d 148 (Tex.Civ.App.—Beaumont 1931, writ ref’d). Under the evidence before the trial Court, the property in question was the business homestead and protected by Tex.Const. art. XVI, § 51.

It is suggested by the Appellees that due to increase in land values, that when O’Neil designated his residence homestead in 1968, that the values involved had probably increased substantially and beyond the then existing limitation. Being excessive doesn’t destroy the designation. 28 Tex.Jur.2d Homesteads § 27 at 401. Exces-siveness was a matter for the creditors to allege and prove before it could be applied to satisfy the deed of trust lien. 28 Tex. Jur.2d Homesteads § 29 at 403. However, the matter of excessive valuation was not shown by the evidence. In addition, the protection afforded to the family by the homestead exemption is also a protection against subsequent inflation. Swayne v. Chase, 88 Tex. 218, 30 S.W. 1049 (1895); Tex.Const. art. XVI, § 51 Comment. If at the time of the designation as homestead, the lot or lots were worth $5,000.00 or less, the lot or lots remained exempt no matter how much the value might increase. Lake v. Boulware, 12 Tex.Civ.App. 660, 35 S.W. 24 (Fort Worth 1896, writ ref’d). If at the time of the designation the lot or lots were worth more than the $5,000.00, the exemption covered an undivided interest in the property, and if the value later increased, the exemption on the undivided interest increased proportionately. Hoffman v. Love, 494 S.W.2d 591 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e), 499 S.W.2d 295 (Tex.1973). If at the time of the residence designation by O’Neil the values of the properties exceeded the amount of the exemption, there would be another matter to consider. It has been suggested that the value limitation should be alloted to the residence homestead first. McSwain, The Texas Business Homestead, 15 Baylor L.Rev. 39 at 53. The effect, if any, of the increased amount of the exemption under Amended Article XVI, § 51, is not considered at this time.

The first point presented by Appellant regarding the homestead is that there is no evidence to support the implied finding that the tract of land was not business homestead. This was an issue upon which the Appellant had the burden of proof and it has been held that such a “no evidence” point fails to invoke any authority for appellate review. Prunty v. Post Oak Bank, 493 S.W.2d 645 (Tex.Civ.App.—Houston 1973, writ ref’d n. r. e.). This holding is forceful here as the case was tried without a jury and the point cannot be based or related to a particular procedural step in the trial process to aid in the determination of the meaning of the improperly worded point. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 362. In view of this, jurisdiction to entertain the point is denied.

The companion point on the homestead attacks the implied negative finding by stating it is contrary to the great weight and preponderance of the evidence. The point is correctly phrased, invokes appellate jurisdiction, and requires a full review of all of the evidence. The implied finding of the trial court is manifestly unjust and the factual point is sustained.

All points have been considered and overruled with the exception of the last one which is sustained. The judgment of the trial Court granting to Appellees the foreclosure of their lien on that 4.09 acres of land in Midland County, Texas, by virtue of the deed of trust given by O’Neil and dated July 10,1970, and which judgment provides for order of sale to issue on that property is reversed, and that issue is severed, and as to it the cause is remanded to the trial Court for retrial. The judgment of the trial Court is otherwise affirmed.


author: STEPHENSON, Justice.

text:
    D. G. DUKE et al., Appellants, v. Dick CALFEE et al., Appellees.
    No. 7731.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 22, 1976.
    Rehearing Denied Feb. 19, 1976.

      John W. Overton, Houston, for appellants.
    George B. Darden, Conroe, Rex G. For-tenberry, Beaumont, for appellees.
   STEPHENSON, Justice.

On Motion for Rehearing, the opinion of this court handed down December 31, 1975, is withdrawn and the following opinion is substituted.

This is an action brought in trespass to try title to recover 27.5 acres of land in Montgomery County. Trial was before the court and judgment was rendered that plaintiffs take nothing and that defendant, Dick Calfee, recover title and possession of the land in question on his cross action brought under the 10- and 25-year Statute of Limitations. The parties will be referred to here as they were in the trial court.

Plaintiffs, Delgie G. Duke, and wife, Clemmer Duke, and others, filed formal pleadings in trespass to try title. Dick Cal-fee, and others, were named as defendants, but only Dick Calfee was given a judgment, on the basis set forth above. After careful consideration of the record before us, we have come to the conclusion that the primary question to be determined is whether plaintiffs proved that defendant Dick Cal-fee had title to the land in question, along with plaintiffs, as tenants-in-eommon.

The basis for contending plaintiffs and defendant Dick Calfee are tenants-in-common is outlined as follows:

1.By Judgment of the District Court of Montgomery County, dated October 7,1935, plaintiff W. L. Spiller recovered title by limitation to certain tracts of land, and defendants (heirs of J. H. Duke) recovered title to the 27.5 acre tract of land which is the subject of the suit before us. H. C. Calfee and Delphia Calfee were named as two of the defendants in that judgment.

2. It is stipulated: That Delphia Calfee was the daughter of J. H. Duke. That J. H. Duke died intestate March 31, 1930. That defendant Dick Calfee was the son of Delp-hia Calfee and H. C. Calfee. That Delphia Calfee died December 15, 1949, leaving everything by will to her husband, H. C. Calfee. That H. C. Calfee died November 15, 1956, leaving everything by will to his son, defendant Dick Calfee.

3. The stipulation also shows that plaintiffs are also heirs of J. H. Duke, some being parties named as defendants in the Spiller-Duke Judgment mentioned above, and others being heirs of other parties named as defendants in such Judgment. It is therefore argued by plaintiffs that the Judgment mentioned is the common source of title between plaintiffs and defendant Dick Calfee and that they are all tenants-in-common.

Defendant Dick Calfee argues first that he is not a tenant-in-common with plaintiffs, because he is claiming under a deed. Our record shows he purchased a larger tract of land by deed dated July 13, 1946, from R. E. Watson and others. That deed describes the land conveyed by metes and bounds and has a recital that the tract contains 226 acres, more or less. He had the land surveyed before this trial, and his surveyor testified that the metes and bounds description did not include the tract of land involved in this suit. Such testimony shows the land in controversy is adjacent to the land conveyed in that deed, and also that both tracts of land are under the same fence.

Defendant Dick Calfee does not contend the description in his deed is ambiguous, or uncertain in any respect. The fact that it is referred to in the deed as the “Moorefield Homestead” cannot be used to enlarge upon the particular description used in the deed. See Southern Pine Lumber Company v. Hart, 161 Tex. 357, 340 S.W.2d 775 (1960). See also, Gibson v. Watson, 315 S.W.2d 48 (Tex.Civ.App., Texarkana 1958, writ ref’d n. r. e.), and Lawyers Title Insur ance Corporation v. McKee, 354 S.W.2d 401 (Tex.Civ.App., Fort Worth 1962, no writ). It is settled law in this state that a particular description controls a general description. The deed under which defendant Dick Calfee asserts his claims does not convey to him the record title to the land in question.

Defendant Dick Calfee also contends that although the metes and bounds description may not have included the 27.5 acres in dispute, that the Judgment of the trial court is correct because he acquired title under the 10- and 25-year Statute of Limitations. After a careful consideration of the record from this standpoint, we have concluded the evidence supports the Judgment of the trial court in its finding under the 10-year Statute, after his father’s death, only if plaintiffs and defendant Dick Calfee are not tenants-in-common. All of the elements of peaceable adverse possession after his father’s death are present that are necessary under the 10-year Statute to mature title by limitation, except as against a co-tenant. The 25-year Statute is not applicable because the 27.5 acres in dispute here are not described in the deed under which defendant Dick Calfee claims.

As to the 10-year Statute of Limitations, there is no evidence in this record that plaintiffs had actual knowledge that defendant Dick Calfee was claiming adversely to them. Such claim would not become adverse unless Dick Calfee’s acts in the assertion of adverse claim were of such unequivocal notoriety as to charge plaintiffs with notice. An excellent statement of the rule is set forth in Poeniseh v. Quarnstrom, 361 S.W.2d 367 at 369 (Tex.1962); it quotes from Phillipson v. Flynn, 83 Tex. 580, 19 S.W. 136 (1892), and reaffirmed in Southern Pine Lumber Company v. Hart, supra, as follows:

“ ‘The possession of a co-tenant or tenant in common will be presumed to be in right of the common title. He will not be permitted to claim the protection of the statute of limitations unless it clearly appears that he has repudiated the title of his co-tenant and is holding adversely to it. Possession and payment of taxes on the property do not constitute the assertion of an adverse right. There must be something more. Alexander v. Kennedy, 19 Tex. 488, 496. The acts relied upon by the tenants in common in showing an ouster of his co-tenants, and the assertion of an adverse claim, should be more certain and unequivocal in character than would be necessary in ordinary cases where there is no privity of estate between the parties claiming the property. And in order to affect the co-tenants with this adverse holding, notice of such fact must be brought home to them, either by information to that effect, given by the tenant in common asserting the adverse right, or by such acts of unequivocal notoriety in the assertion of such adverse and hostile claim that they will be presumed to have notice of such adverse right. Moody v. Butler, 63 Tex. 210; Wood, Lim. Act. § 266.’ ”

The evidence in this case shows the following: After receiving his deed in July, 1946, defendant Dick Calfee went into possession of the entire tract under fence, which included the 27.5 acres in question. In order to get to this part of the land under fence, it is necessary to enter at a gate located near Dick Calfee’s house and to then proceed down a gravel road built and maintained by Dick Calfee. The land in question has been used continuously by Dick Calfee either as a hay meadow or a cattle pasture. The hay meadow has been terraced and fertilized regularly. Dick Cal-fee constructed a trench silo on part of the land and a dam for a stock pond on another part. Dick Calfee cut and sold timber, cut out underbrush and brush-hogged a part of this land. Dick Calfee testified that he thought he had purchased and received a deed covering the land in question along with the Moorefield place, and he claimed everything under fence.

As stated above, all of this evidence would support the court’s finding under the 10-year Statute of Limitations after his father’s death, but only if the parties were not tenants-in-common. It is well recognized law that a co-tenant is entitled to possession, and the acts of Dick Calfee are susceptible to‘ explanation consistent with the existence of a common title. See Southern Pine Lumber Company, supra; and, Kirby Lumber Co. v. Temple Lumber Co., 125 Tex. 284, 83 S.W.2d 638 (1935).

Dick Calfee is in the unique position in this case of now contending that he acquired title to the 27.5 acres in question under the 10-year Statute of Limitations before his father died, and he became a tenant-in-common. As stated above, Dick Calfee got a deed to the larger tract of land in July 1946, and took possession of the larger tract along with this 27.5 acres under the mistaken belief that the description in his deed included everything under fence. However, the evidence shows without question that Dick Calfee lived with his mother (who died December 15, 1949) and his father (who died November 15, 1956) on another tract of land. Dick Calfee testified unequivocally that he did not claim the 27.5 acres in question against his mother and father while they were living. From the date of the judgment mentioned above, 1935, until their deaths, this mother and father were the tenants-in-common, and upon the father’s death, Dick Calfee became a tenant-in-common. Consequently, Dick Calfee’s claim was not “adverse” under the 10-year statute during the lifetime of his parents.

The judgment of the trial court is reversed and this case is remanded to the trial court to enter judgment for plaintiffs and defendants in accordance with their respective interests as heirs of J. H. Duke.

REVERSED and REMANDED.


author: BISSETT, Justice.

text:
    EXXON CORPORATION, formerly Standard Oil Company (New Jersey), Appellant, v. Koven RAETZER, Appellee.
    No. 1045.
    Court of Civil Appeals of Texas, Corpus Christi.
    Jan. 30, 1976.
    Rehearing Denied Feb. 26, 1976.

      C. O. Ryan, Kelley, Ryan & Merrill, Houston, for appellant.
    Bryan W. Scott, Urban, Coolidge, Pennington & Scott, Houston, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal by Exxon Corporation from a judgment which awarded Koven Raetzer the fair market value at the time of trial of 300 shares of capital stock of Exxon Corporation, the successor corporation to Standard Oil Company of New Jersey. Trial was to the court without a jury.

Suit was filed on October 6,1971. Koven Raetzer, plaintiff, in his original petition, his trial pleading, among other allegations, alleged: that he, prior to October 7, 1969 and also at the time of trial, was the registered owner of 325 shares of capital stock of Standard Oil of New Jersey, which was evidenced by four certificates, one for 25 shares and three for 100 shares each; that on or about October 6, 1969, the 25 shares were transferred without his authority; that on or about August 28, 1970, the 300 shares were transferred without his authority; and that his purported signature on the back of each certificate was not his signature, and that those signatures were forgeries.

Exxon, in its first amended original answer, its trial pleading, denied generally the allegations contained in the plaintiff’s original petition. It also pled the provisions of Tex.Bus. & Comm.Code Ann. § 8.405(a) (1968) as a defense to the action brought against it, and asserted that Raetzer, by the express terms of that statute, was precluded from asserting any claim against it.

Trial commenced on May 28,1975. Plaintiff, after answering ready but before the presentation of any evidence, took a non-suit as to his claim with respect to the 25 shares of capital stock. Judgment in Raet-zer’s favor for $24,937.50, plus interest thereon at the rate of 6% per annum from date of judgment until paid, was signed on June 18,1975. Findings of fact and conclusions of law were made and filed by the trial court.

It is undisputed that Raetzer, prior to October 7, 1969, was the registered owner of 325 shares of stock of Standard Oil of New Jersey; that on October 7, 1969, the certificate evidencing his ownership of 25 shares was cancelled an'd the stock was transferred; and that on August 28, 1970, three certificates, each for 100 shares, were cancelled and the 300 shares were transferred on that same day. It is uncontroverted that sometime during the latter part of September, 1969, Raetzer learned that the 325 shares of Standard Oil Company of New Jersey stock (among other stocks and securities) were missing from his safety deposit box. Thereafter, in October, 1969, he contacted his attorney, Mr. Fred Dailey, concerning the disappearance of the securities from the box. It is also undisputed that the stock was transferred by Exxon’s predecessor, Standard Oil Company of New Jersey, without authorization from Raetzer and upon his forged signatures.

The first communication by Raetzer to the issuer with respect to the missing 325 shares of stock was by a letter, dated July 22, 1970, written by Mr. Dailey, Raetzer’s attorney, to Standard Oil Company of New Jersey. That letter, excepting only the date, the addressee, and the signature, is, in words and figures, as follows:

“Gentlemen:
The undersigned attorney, for the firm, represents Mr. Koven Raetzer. In the past few months irregularities in the handling of Mr. Raetzer’s investments have been discovered.
In order to determine whether Mr. Raet-zer’s interest represented by Three Hundred Twenty-five (325) shares of capital stock in your corporation has been affected, please advise the undersigned in writing whether you show any change in ownership or status.”

Receipt of the letter was acknowledged by Morgan Guaranty Trust Company of New York, the stock transfer agent of Standard Oil Company of New Jersey, hereinafter called “the stock transfer agent”, by memorandum numbered 10T-34, dated July 28, 1970. The stock transfer agent, by letter dated August 3, 1970, further advised Dai-ley:

“With further reference to your letter of July 22,1970, an examination of the stock records shows 300 shares registered and outstanding in the name of Koven Raet-zer. On October 7, 1969, certificate # AF174414, representing 25 shares, was cancelled, leaving a balance of 300 shares in the account.”

The trial court found in Finding of Fact III that the letter of July 22, 1970 from Dailey to Standard Oil Company of New Jersey was sufficient notice to advise the issuer of the stock that it had been lost, apparently destroyed or wrongfully taken. In Finding of Fact Y, the trial court found that said letter was sufficient to put the issuer on inquiry as to whether or not the stock in question had been wrongfully taken, apparently destroyed or lost.

Exxon, in points 1 and 4, contends that there is “no evidence” to support Findings of Fact III and V. It further contends, in point 2, that the undisputed evidence compelled a finding as a matter of law that Raetzer failed to notify it that the stock certificates in question had been lost, destroyed or wrongfully taken before the stock represented by such certificates was transferred.

As a general rule, an issuer of corporate stock who registers the transfer of a security pursuant to an unauthorized signature (such as a forgery) of the true owner is subject to liability for improper registration. Tex.Bus. & Comm.Code Ann. § 8.311 (1968). However, an exception to that general rule is found in Tex.Bus. & Comm.Code Ann. § 8.405(a) (1968), which provides:

“Where a security has been lost, apparently destroyed or wrongfully taken and the owner fails to notify the issuer of that fact within a reasonable time after he has notice of it and the issuer registers a transfer of the security before receiving such a notification, the owner is precluded from asserting against the issuer any claim for registering the transfer under the preceding section or any claim to a new security under this section.”

Where a point of error asserts that there is no evidence to support a finding of fact by the trial court, an appellate court must consider only the evidence and the inferences tending to support the finding, and must disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). In discussing the quantity and quality of the evidence where a “no evidence” point is presented, Justice Calvert, in 38 Tex.L.Rev. 359, 362 (1960), said:

“ ‘No evidence’ points must, and may only, be sustained when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact.”

In the case at bar, the situations set out in (b) and (d) of the article are not involved. The “vital fact” in issue is whether the July 22, 1970 letter constituted notice to Standard Oil Company of New Jersey that the 300 shares had been “lost, apparently destroyed or wrongfully taken”.

Notice is defined in Tex.Bus. & Comm. Code Ann. § 1.201(25) (1968) as follows:

“(25) A person has ‘notice’ of a fact when
(A) he has actual knowledge of it; or
(B) he has received a notice or notification of it; or
(C) from all the facts and circumstances known to him at the time in question he has reason to know that it exists. . . ”

Ordinarily, notice is a question of fact which is to be determined by the trier of facts; it becomes a question of law only when there is no room for ordinary minds to differ as to the proper conclusion to be drawn from the evidence. O’Ferral v. Coolidge, 149 Tex. 61, 228 S.W.2d 146 (1950).

Notice, in law, is of two kinds, actual and constructive. We are not here concerned with constructive notice. Actual notice may be either express or implied. Hexter v. Pratt, 10 S.W.2d 692 (Tex.Comm’n App.1928), cited with approval by our Supreme Court in Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951), held:

“. . . In common parlance ‘actual notice’ generally consists in express information of a fact, but in law the term is more comprehensive. In law whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand, which if pursued by the proper inquiry the full truth might have been ascertained. Means of knowledge with the duty of using them are in equity equivalent to knowledge itself. Where there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge. . . ” (Emphasis supplied.)

Generally speaking, what will amount to implied notice sufficient to affect the party who receives it depends upon the peculiar facts of each case. There can be no general rule which embraces all circumstances that are sufficient to put a party on notice of the existence of a fact, but it is universally recognized by our courts that the fact which is claimed to put a person on notice must be of a nature that would normally excite investigation; mere rumors, vague statements, and circumstances that are dubious or equivocal and do no more than arouse suspicion or create speculation, are not sufficient to constitute actual notice. See 41 Tex.Jur.2d, Notice, § 9 (1963); 58 Am.Jur.2d, Notice, §§ 11, 12, 13 (1971); 66 C.J.S. Notice § 11 (1950).

Implied notice is an inference of fact. 58 Am.Jur.2d, Notice, § 5 (1971). But, the rule of implied notice of a fact which could be discovered by inquiry is not applicable unless the party who is sought to be charged with such notice is under a duty to follow up the communication by inquiry. American Surety Co. of New York v. Bache, 82 S.W.2d 181 (Tex.Civ.App.—Fort Worth 1935, writ ref’d).

In Flack v. First National Bank of Dalhart, 148 Tex. 495, 226 S.W.2d 628 (1950), our Supreme Court said:

“ ‘Whatever puts a person on inquiry ordinarily amounts in law to notice, provided inquiry has become a duty and would lead to knowledge of the facts by the exercise of ordinary diligence and understanding. . . .(Emphasis supplied).

The rule with respect to the extent of the duty to make inquiry, is stated in 41 Tex. Jur.2d, Notice, § 5 (1963), as follows:

“Although actual notice includes the knowledge of all those facts that a reasonable inquiry would have disclosed, the duty of inquiry extends only to those matters that are fairly suggested by the facts really known; circumstances that may merely arouse suspicion in the mind of a reasonably prudent person are generally regarded as insufficient to charge notice.”

It has been held that where the circumstances claimed to be sufficient to charge a person with notice may be equally well referred to some matter other than that with notice of which he is sought to be charged, the circumstances claimed to put a person on inquiry will not be deemed sufficient to charge him with notice. Houston Oil Co. of Texas v. Griggs, 181 S.W. 833, 838 (Tex.Civ.App.—Beaumont 1916), affirmed in 213 S.W. 261 (Tex.Comm’n App.1919, judgmt. adopted). It has also been held that statutes regulating the general subject of notice are to be construed most liberally in favor of the party who is affected by the notice. Phinney v. Langdeau, 337 S.W.2d 393 (Tex.Civ.App.—Austin 1960, writ refd n. r. e.).

Applying the statutory definition of “notice” set out in Tex.Bus. & Comm.Code Ann. § 1.201(25) (1968) to the “notice” prescribed by Tex.Bus. & Comm.Code Ann. § 8.405(a) (1968) the issuer of the missing stock certificates must either have actual knowledge of the fact that the stock “has been lost, apparently destroyed or wrongfully taken”, or it must be given actual notice, express or implied, of that fact. In the absence of actual knowledge or actual notice of that vital fact within a reasonable time after the stockholder has notice of it and the issuer registers a transfer of the stock before receiving such notice, the stockholder, under the provisions of Tex. Bus. & Comm.Code Ann. § 8.405(a) (1968), is precluded from asserting any claim against the issuer. The burden was on Raetzer to notify Standard Oil Company of New Jersey, or its stock transfer agent, within a reasonable time after the latter part of September, 1969 of the disappearance of the stock.

There is no evidence in this case that Standard Oil Company of New Jersey, or its stock transfer agent, had actual knowledge that the 300 shares of stock, at any time pertinent to this lawsuit, had been lost, apparently destroyed or wrongfully taken. The July 22, 1970 letter did not amount to express notice of the fact. No literal language to the effect that the stock had been lost, apparently destroyed or stolen appears anywhere in the letter. The question then arises: Did the statement in the letter “In the past few months irregularities in the handling of Mr. Raetzer’s investments have been discovered”, coupled with the request that Raetzer be advised in writing whether the issuer showed “any change in ownership or status” of the 325 shares, in order for Raetzer to determine whether those shares had been affected by the irregularities, constitute implied notice to Standard Oil Company of New Jersey that the stock had been lost, apparently destroyed or wrongfully taken? We answer that question in the negative.

The law of implied notice imputes notice only of those facts that are naturally and reasonably connected with the fact known, and to which the known fact can be said to furnish a clue. The only facts presented by the July 22,1970 letter are: 1) the irregularities in the handling of the investments; and 2) the asserted ownership by Raetzer of 325 shares of stock. The reply letter of the stock transfer agent to Dailey, dated August 3, 1970, expressly referred to the July 22, 1970 letter, and in plain, concise language notified Dailey that the certificate for 25 of the 325 shares had been cancelled on October 7, 1969 (more than eight months before the Dailey letter was written), and that the issuer’s books showed that 300 shares were, at that time, registered in the name of Raetzer. That letter answered every question asked of the issuer by Dailey. The only duty owed by Standard Oil Company of New Jersey upon receipt of the letter was to furnish Dailey with the requested information. That duty was fully and timely performed.

The possibility of loss or theft of the stock is not naturally or reasonably connected with any of the facts made known by the letter. The phrase “irregularities in the handling of Mr. Raetzer’s investments” is limited by the very words themselves to matters of business, which were of no concern to the issuer. It did no more than advise Standard Oil Company of New Jersey that someone in charge of Raetzer’s investments had not adhered to some prescribed rule imposed upon him by Raetzer, or by normal and usual business procedures and customs. There is no reasonable or logical basis for the contention that the phrase, standing alone, or in conjunction with the remainder of the letter, gave rise to an inference that the stock had been lost, apparently destroyed or wrongfully taken. Neither the statute, the relationship of the parties, nor the circumstances described and mentioned in the letter, imposed any duty on the issuer to make any inquiry concerning whether the 300 shares were lost, destroyed or wrongfully taken. The matter of the stock being lost, destroyed or stolen was not fairly suggested by the contents of the letter. The fact that the certificates were missing was fully known to both Raet-zer and his attorney long before the letter was written. It would have been a simple task to have notified Standard Oil Company of New Jersey in plain language that the certificates were missing and that it must be presumed that they had been lost, destroyed or stolen. No explanation was offered by Raetzer at the trial why this was not done.

We hold that the July 22, 1970 letter did not constitute notice, express or implied, of the vital fact that the stock had been lost, apparently destroyed or wrongfully taken. If it did constitute any evidence indicative of a fact question to be resolved by the trier of fact, such evidence is so weak that it is no more than a scintilla, grounded solely on conjecture, surmise and speculation. The letter falls short of being any evidence that raised the issue of notice. See Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898); Hunter v. Carter, 476 S.W.2d 41 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n. r. e.). The uncontroverted evidence compels a finding as a matter of law that Raetzer did not notify Standard Oil of New Jersey, or its stock transfer agent, that the stock certificates for the 300 shares had been lost, destroyed or wrongfully taken before August 28, 1970, the date the stock represented by such certificates was transferred. Exxon’s points 1, 2 and 4 are sustained.

There was no further communication between the parties until December 9, 1970, when Dailey wrote the following letter to the stock transfer agent:

“Please refer to your communication dated August 3, 1970.
Our investigation reveals that the transfer on October 7, 1969 of twenty-five (25) shares of stock in your corporation in Mr. Raetzer’s name was done without Mr. Raetzer’s knowledge and by the use of a forged signature. Please correct your records in order to show Mr. Raetzer the owner of an additional twenty-five (25) shares of stock in your corporation.”

On December 10,1970, another letter was written by Mr. Dailey to the stock transfer agent, which stated:

“Please refer to memorandum numbered 10T-34 and dated July 28, 1970.
Please advise me of the status of Mr. Koven Raetzer’s holdings in Standard Oil Company (New Jersey).”

The stock transfer agent, by letter dated December 22, 1970, advised Dailey that the transfer of the 25 shares was effected through Bank of America (San Francisco), a co-transfer agent. It was suggested that Dailey get in touch with the Bank. The record does not reveal that Dailey did so, and there is no showing of any further communication between Dailey and the issuer, or either of its stock transfer agents.

The trial court, in Finding of Fact VI, further found:

“Plaintiff notified Defendant within a reasonable time that the 25 shares which had been transferred in October, 1969, were transferred based upon a forged signature, and Plaintiff further notified Defendant, or put Defendant on inquiry that the remaining 300 shares of stock might be transferred based upon a forged signature.”

Exxon, in its point 6, challenges the above-quoted finding, by asserting that there is “no evidence to support it”. We agree.

The December 9, 1970 letter dealt only with the 25 shares of stock. That transfer was handled by Bank of America, not by Morgan Guaranty Trust Company of New York. The transfer of those shares is not before this Court in this appeal. The record is silent with respect to which of the transfer agents, Bank of America or Morgan Guaranty Trust Company, made the transfer of the 300 shares. It is undisputed that the 300 shares were transferred on August 28, 1970. The statute, Tex.Bus. & Comm. Code Ann. § 8.405(a) (1968), requires that the stockholder notify the issuer that the stock has been “lost, apparently destroyed or wrongfully taken” within a reasonable time after he has notice of that fact, and if the issuer registers a transfer of the stock before receiving notice of that fact within a reasonable time, the stockholder is precluded from taking any action against the issuer. It is impossible to impute notice to Standard Oil Company of New Jersey by a letter written on December 9,1970, that the 300 shares which had already been transferred on August 28, 1970, might have been transferred on a forged signature before August 28, 1970, or that it might, on or subsequent to that date, have been so transferred. Exxon’s point 6 is sustained.

Exxon further challenges Finding of Fact III (point 3), Finding of Fact V (point 5), and Finding of Fact VI (point 7) by “contrary to the great weight and overwhelming preponderance of the evidence” points. We have read the record in its entirety and have carefully reviewed all of the evidence in the case, and, as already stated, have sustained all of Exxon’s “no evidence” points. The case has been fully developed and a reversal and remand in the interest of justice is not warranted. It is our duty to render the judgment which the trial court should have rendered.

The judgment of the trial court is REVERSED and judgment is here rendered that Koven Raetzer take nothing by his suit against Exxon Corporation. However, in the event that the Supreme Court should disagree with us on our “no evidence” holdings, then and in such event we would hold that Findings of Fact III, V and VI are “against the great weight and overwhelming preponderance of the evidence”, and in that event, the case would be reversed and the cause remanded.

REVERSED AND RENDERED.


author: McKAY, Justice.

text:
    Ismael RODRIQUEZ and Rosie Rodriquez d/b/a R & B Garage, Appellants, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 912.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 5, 1976.
    Rehearing Denied March 11, 1976.

      Marvin B. Zimmerman, Carter, Callender & Gonzalez, San Antonio, for appellants.
    John L. Hill, Atty. Gen., Paul R. Gavia, Asst. Atty. Gen., Austin, for appellee.
   McKAY, Justice.

Appellants, Ismael and Rosie Rodriquez, seek reversal of a judgment which suspended their certificate of appointment as a certified automobile inspector and the license of the R & B Garage as an official motor vehicle inspection station.

After an administrative hearing, the Department of Public Safety, appellee, ordered the suspension of appellants’ above mentioned certificate and license for a period of twelve months, beginning October 22, 1974. The order of suspension was entered pursuant to Article 6701d, Section 141(c), V.A.T.S. On October 24, 1974, appellants appealed from the administrative order by filing in district court as also provided in Article 6701d, Section 141(c). On the same day, the trial court entered a stay order enjoining the execution of the administrative order.

The trial to the court without a jury resulted in the following judgment being rendered on March 12, 1975:

“And the Court . . . is of the opinion and finds that . . . said administrative orders should be, and the same are, hereby affirmed to become effective immediately from and after the entry of this judgment, the term of said suspensions to be modified so as to expire on January 1, 1976.” (Emphasis added.)

The judgment also dissolved the stay order previously entered October 24, 1974. '

By the express terms of the judgment, the period of suspension expired January 1, 1976. In our opinion, the questions presented for decision are now moot. Appellants seek no relief other than reversal of the order of suspension. The general rule appears to be that where an order expires by its own terms pending appeal all issues relating to the validity of the order become moot. Speed v. Keys, 130 Tex. 276, 109 S.W.2d 967 (1937); Texas Liquor Control Board v. Warfield, 123 S.W.2d 979 (Tex.Civ.App.—Waco, 1939, no writ); State Board of Ins. Com’rs of Texas v. Fulton, 229 S.W.2d 652 (Tex.Civ.App.—Waco, 1950), writ ref’d, n. r. e. per curiam, 234 S.W.2d 389 (Tex.1950); Johnson v. State Board of Morticians, 288 S.W.2d 214 (Tex.Civ.App.—Galveston, 1956, no writ); Texas Alcoholic Beverage Commission v. Carlin, 468 S.W.2d 521 (Tex.Civ.App.—Beaumont, 1971), aff’d on other grounds, 477 S.W.2d 271 (Tex.1972); Christie v. Argonaut Insurance Companies, 530 S.W.2d 334 (Tex.Civ.App.—Austin, 1975, no writ).

In State Board of Ins. Com’rs of Texas v. Fulton, supra, the Supreme Court stated without explanation that, “The application for writ of error is Refused No Reversible Error, but without thereby affirming the holding that the cause was moot.” Moreover, in Texas Alcoholic Beverage Commission v. Carlin, supra, the Supreme Court questioned the soundness of the conclusion of the Court of Civil Appeals that the cause was moot, but then affirmed because the cause had become moot for other reasons. We do not consider these expressions by the Supreme Court as a disapproval of the general rule, however. As pointed out in Danciger Oil & Refining Co. of Texas v. Railroad Commission of Texas, 122 Tex. 243, 56 S.W.2d 1075 (1933) courts have sometimes entertained attacks on orders that have expired by their own terms because the person against whom such order was made might suffer some subsequent detriment if the legality of the order were not determined. No such case is presented here, however. Article 6701d is silent as to any subsequent effect that a previous order of suspension might have after such an order has expired. Therefore, in our opinion this case should be governed by the general rule.

It should also be noted that appellants filed a supersedeas bond for the purpose of suspending execution of the trial court’s judgment. Although the filing of the su-persedeas bond may have had the effect of suspending enforcement of the trial court’s order, the supersedeas bond could not prevent this controversy from becoming moot. The trial court’s judgment did not suspend appellants’ licenses for a certain period of days, weeks, months, or years. Instead, the judgment simply stated that the term of suspension would expire on January 1,1976, a date since passed. By its terms, the order of suspension could not have any force or effect beyond January 1, 1976. Any decision on the merits at this time would be advisory and ineffectual.

Accordingly, the cause is dismissed as moot.

      . “The Department may for cause, upon notice of an administrative hearing, cancel or suspend the certificate of any inspection station or cancel or suspend the certificate of any person to inspect vehicles and the decision of the Department in respect to the cancellation or suspension of the station license or the cancellation or suspension of the certificate of any person to inspect vehicles, or the refusal to reissue a license to any official inspection station or the refusal to reissue the certificate for any person to inspect vehicles shall be subject to review as provided herein. Any aggrieved party may appeal from the decision of said administrative hearing. The proceedings on appeal shall be a trial de novo, as such term is commonly used and intended in an appeal from the justice court to the county court, and which appeal shall be taken in any district court of the county in which the inspection station is located. At such trial the burden of proof shall always be on the Department and never shifts to the aggrieved party.”


author: McDONALD, Chief Justice.

text:
    METROPLEX EQUITIES, INC., Appellant, v. W. F. LOTT et al., Appellees.
    No. 5543.
    Court of Civil Appeals of Texas, Waco.
    Feb. 5, 1976.
    Rehearing Denied March 18, 1976.

      Stalcup, Johnson, Meyers & Miller, David J. White, Dallas, for appellant.
    Green, Gilmer, Crutcher, Rothpletz & Burke, John Plath Green, Dallas, Harold Hollingsworth, Kaufman, Howell, Johnson, Mizell, Taylor, Price & Corrigan, Robert S. Mizell, Dallas, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Metroplex from judgment for plaintiffs Lott in a suit for earnest money deposited by Metroplex under the terms of a contract to purchase real estate.

Plaintiffs Lott sued defendant Kaufman County Abstract Company, alleging plaintiffs entered a contract with Metroplex to sell Metroplex real estate in Kaufman County; that Metroplex placed $10,000. in escrow with the Abstract Company as earnest money; that Metroplex defaulted in its performance of the contract; and that plaintiffs are entitled to the $10,000. under the terms of the contract.

The Abstract Company answered by in-terpleader alleging a controversy between the Lotts and Metroplex over entitlement to the money; tendered the $10,000. into court, and plead for its attorney’s fees.

Metroplex answered that it did not breach the contract to purchase, but that plaintiffs Lott were unable to convey title to the property in accordance with the contract, and cross acted for the $10,000.

Trial was before the court, which held that plaintiffs Lott had tendered full performance of their contract to sell; that Metroplex failed and refused to perform such contract; rendered judgment that the Abstract Company recover $500. attorney’s fees; that plaintiffs Lott recover $9,500; and that Metroplex take nothing.

Metroplex appeals on 11 points, the basic contentions of which are that the judgment of the trial court should be reversed and rendered because:

1) Two T P & L easement instruments encumbering the property were not excepted from the title which the Lotts contracted to convey to Metro-plex.
2) Two Rose Hill Water Supply Corporation easement instruments encumbering the property were not excepted from the title which the Lotts contracted to convey to Metroplex.

Metroplex as purchaser and the Lotts (W. F. Lott, James M. Lott, and Margarett Lott) as sellers entered into a contract of sale of .438.9 acres of land in Kaufman County in November 1973. Pursuant to the terms of the contract Metroplex deposited $10,000. with the Abstract Company as earnest money. (When the instant case was filed the Abstract Company tendered this money into court.) The contract provided that if the purchaser failed to consummate the contract for any reason except sellers’ default, the seller shall have the right to the earnest money as liquidated damages.

The contract provided that good and marketable title would be conveyed by general warranty deed with the following exception:

“8(d) Seventy (70) foot T P & L right-of-way easement of approximately 2.7 acres and Rose Hill Water Supply Corporation line easement in front of the property adjacent to FM 987.”

Metroplex 1st contention is that there are two T P & L easement instruments:

1) A 1925 grant to T P & L to run a 70 foot right-of-way easement over approximately 2.7 acres; and

2) A 1966 grant to T P & L, which additionally restricted the land owner from building structures more than 20 feet in height “within 50 feet of the centerline”.

Metroplex asserts “thus the restriction on the property was not a 70-foot strip but a 100-foot strip on the entire length of the transmission line”; that there is 30 foot more easement on the property than was excepted in the contract, and for such reason the Lotts have not tendered the title they contracted to convey.

Metroplex 2nd contention is that there are two Rose Hill Water Corporation instruments which do not show the location where the pipeline is to be laid. The 1st easement was signed by only two of the Lotts, while the 2nd easement is identical with the 1st, and is signed by all three of the Lotts.

Prior to execution of the contract of sale, the Lotts’ real estate agent delivered to Metroplex copies of the two T P & L easements, and copies of the two water line easements; and the officers of Metroplex went out on the land and viewed the power and water lines in place on the property. Metroplex then prepared the contract of sale and by letter dated October 30, 1973, forwarded it to the Lotts’ agent with comments on various sections of the contract they had prepared. The comment on section 8d was “We have listed the two specific easements of T P & L and the Kaufman water line as acceptable to us”.

The foregoing evidence was admissible to explain section 8d of the written contract, which as noted was prepared by Metroplex. Neece v. AAA Realty, S.Ct., 159 Tex. 403, 322 S.W.2d 597.

We think the trial court was authorized to find that the four easement instruments constituted the two easements excepted in section 8d of the contract, and that the easements excepted in section 8d of the contract describe and are the four easements which are in evidence, and copies of which were furnished to Metroplex prior to preparation and execution of the contract, and which Metroplex stated in its letter of October 30,1973, were “acceptable to us”.

All Metroplex’s points have been considered and are overruled.

Affirmed.


author: MASSEY, Chief Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. HERTZ EQUIPMENT RENTAL COMPANY et al., Appellees.
    No. 17694.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 6, 1976.
    Rehearing Denied March 12, 1976.

      William H. Smith, Dallas, Morgan, Gam-bill & Owen, and Judge Gambill, Fort Worth, for appellant.
    Brown, Crowley, Simon & Peebles, and Anne Gardner, Fort Worth, for appellees.
   OPINION

MASSEY, Chief Justice.

December 16, 1971, defendant Joseph Eugene McMurtrie, driving truck of defendant Hertz Equipment Rental Company, proceeded in an easterly direction on what is known as the west freeway in Fort Worth, Texas. His direction of travel was toward the City of Fort Worth. At a point proximate to Sanguinet Street the top portion of the load on the truck struck an overhead cable of plaintiff Southwestern Bell Telephone Company. The collision was forceful. The truck overturned with its load. Damage done to the telephone company as result of the severing of its cable was in the amount of $8,353.88 according to the jury verdict.

In the trial court a take nothing judgment was rendered both on the telephone company’s primary action and upon the cross-action of Hertz. Judgment was based upon verdict by which the jury refused to find that the negligence of Hertz’ driver was a proximate cause of the collision and also refused to find that the telephone cable was negligently maintained at such a height as to be struck. The telephone company appealed.

Judgment reversed. Judgment here rendered for recovery by the telephone company in the amount of damages found.

Merrick Street overpass is located approximately three blocks to the west of the point of collision. Hertz’ truck driver had loaded the truck at a point to the west from the Merrick overpass. The truck was loaded with a “fork-lift”, a self-propelled machine by which loads are lifted from the ground or floor of premises to be transported laterally and deposited at a different location.

In upright position the elevating parts of the “fork-lift” may be operated by rolling or sliding upon the frame. These are telescoping parts which when fully extended enable the lifting of material, etc., to a considerable height. The load on Hertz’ truck was with this framework in upright position. By jury finding not attacked the height of the topmost part of the “fork-lift” at time of the collision was sufficient to come into contact with the telephone cable. As loaded upon the truck in upright position, at time of the collision the “fork-lift” reached a height above thirteen feet six inches (13' 6") by jury finding not attacked. On this there was evidence, not contradicted, to the effect that as the truck passed under the Merrick Street overpass the top portion of the “fork-lift” scraped the under-portion of the same so that sparks were created by the friction. Debris such as concrete fragments and dust particles were present in the air in that area immediately after the truck passed beyond and to the east of this overpass. Evidence was entered upon trial that at the point where the scraping occurred the height of the underside of the overpass was just under sixteen feet on its west side — point of entry by the truck — and only slightly higher than fifteen feet on the east at the point where the truck escaped the overpass. Observed is the possibility that the collision with the overpass might have jolted the telescoping parts so that a portion thereof was extended so as to make the load on Hertz’ truck reach a greater height at time the telephone cable was struck than that existent at time of the collision with Merrick overpass, though the only evidence in the record was that such an extension could not have resulted. In any event we conclude that the answer to questions posed by the appeal could not thereby have been affected.

The telephone cable having been severed and cast to the ground as result of the damage done by the collision its height could not be measured. The height of the wire by which it had been suspended was shown, and also proved was a measurement of its height in April prior to the December collision. In April the height was in excess of seventeen feet. Ample evidence showed that there was heavy traffic at all times on the west freeway, with every vehicle passing under the cable with no damage done prior to the occasion of the collision. Furthermore there is no attack upon the jury finding which acquitted the telephone company of negligence in the maintenance of the cable, whatever its height might have been.

The telephone company’s basic theory of liability is that of trespass. The claim is that the law has application as stated in the case of Mountain States Tel. & Tel. Co. v. Vowell Const. Co., 161 Tex. 432, 341 S.W.2d 148 (1960). That case was one where the defendant intentionally made a cut into the ground and into a telephone cable. There the defendant was charged with notice of the presence of the particular cable, he being obligated by his contract with a third party to protect existent structures and property located in or adjacent to the street upon which the cut was made. In Mountain States the cable was lawfully in place when it was damaged, the defendant merely having failed to follow through and obtain exact information on the depth at which it was buried before making the cut.

We reject the claim of liability by theory of trespass. The record does not establish intent on the part of Hertz’ driver to drive the truck with knowledge that it was loaded so that the height of the load exceeded the maximum permitted by law. The record merely establishes that such driver was negligent in either failing to know or in not discovering the fact; and that perhaps through ignorance he did proceed to operate the truck with its load of excess height.

We do, however, find ourselves in accord with the alternative negligence theory plead by the telephone company, upon which the case was submitted to the jury. Since the telephone company laid a predicate therefor by its motion for judgment non obstante veredicto to the trial court, we are authorized to disregard the jury’s failure and refusal to find that the action of Hertz’ driver constituted negligence or a proximate cause. We should render judgment for the telephone company upon determining that the driver’s negligence, as a matter of law, was also a proximate cause, as a matter of law, of the collision with the telephone cable and of the consequent damages. T.R.C.P. 301, “Judgments”.

The jury, having found for the telephone company upon adequate evidence that the Hertz vehicle, with its load, exceeded thirteen feet six inches (13' 6") at time of the collision with the cable, and therefore in violation of the Uniform Act Regulating Traffic on Highways, at V.A. T.S., Art. 670M-11, Sec. 3, “(Weights and loads, etc.) — Width, length and height”, it necessarily follows that the operation of the same was negligence as a matter of law. Since the jury refused to find for Hertz that the telephone company was negligent in maintaining its cable at such a height that Hertz’ vehicle with load would strike it, we necessarily conclude that the telephone company maintained its cable in such manner as not to incommode the public. There was compliance with requirements relative to the height at which it should maintain the cable. V.A.T.S. Title 32, Ch. 10, “Public Utilities”, Sub. 1, “Telegraph”, Art. 1416, “Public ways: use”.

The telephone company stands acquitted of negligence constituting proximate cause of the collision. The only question is whether the same thing might be said of Hertz and its driver.

The parties concede that Hertz’ driver was guilty of negligence as a matter of law, though by answer to a special issue the jury refused to find such as a fact. The parties differ upon whether such negligence constituted a proximate cause of the collision with the telephone cable. On this the jury refused to find proximate cause as a matter of fact. We hold that under the circumstances of the case the driver’s negligence was a proximate cause as a matter of law.

In Texas it is settled that “foreseeability” of same or similar consequence by one who is negligent is treated as an element of “proximate cause”. Thurman v. Chandler, 125 Tex. 34, 81 S.W.2d 489 (1935); 40 Tex.Jur.2d, p. 471, “Negligence”, Sec. 19, “(Tests of Proximate Cause) — In general; Natural and probable consequences”. Since in the instant case there would be no question but that the excess in the height of Hertz’ truck with load was a direct cause of the collision in question, the determinative question is whether such collision was or should have been “foreseeable”.

The test to be applied is whether an ordinarily prudent person, in the light of common or ordinary experience, should under the circumstances have reasonably anticipated that a collision would occur as the result of his conduct. 40 Tex.Jur.2d, p. 477, “Negligence”, Sec. 21, “Attributed foresight”; Houston Lighting & Power Company v. Brooks, 161 Tex. 32, 336 S.W.2d 603 (1960); Mexican Nat. R. Co. v. Mussette, 86 Tex. 708, 26 S.W. 1075 (1894); Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162 (1896); and 155 A.L.R. 157, Annotation: “Foreseeability as an element of negligence and proximate cause”, supplemented at 100 A.L.R.2d, p. 942.

It has been stated that “The law of probable cause holds that an injury which is the natural and probable consequence of an act of negligence is actionable and such an act is the proximate cause of the injury. The injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either a remote cause, or no cause whatever of the injury.” Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74, 51 A.L.R.2d 624 (1954). It is obvious that the Illinois court was speaking of the “event” when it used the term “injury”. In the case under scrutiny the cause is the excess height of the Hertz truck and load striking a properly placed telephone cable. Therefore the operation of the truck with excess in the height of the load could not be a remote cause of that event. The operation of the truck with an excess in the height of the load could not be deemed to have constituted no cause whatever.

It is obvious from legislative enactments on mandatory heights of structures, etc., across highways and in the limitations put upon heights of vehicles carrying loads that our Senators and Representatives foresaw the probability of collisions, one with the other. Thereby a guide is supplied to “foreseeability” by a reasonably prudent person, both as related to negligence and proximate cause, excepting when he might encounter some extraordinary circumstance.

The facts and circumstances of the instant case present no extraordinary circumstance. Therefore by the “ordinarily prudent man” test the collision which occurred, or one of similar character, should reasonably have been anticipated by the driver of the Hertz truck. We hold that his negligence amounted to a proximate cause of the collision and damage done to the telephone line as a matter of law.

Judgment is reversed. Judgment is rendered that Southwestern Bell Telephone Company have and recover joint and several judgment from Hertz Equipment Rental Company and Joseph Eugene McMurtrie in the amount of $8,353.88, plus interest thereon at 6% from February 17,1975 to September 1,1975, and at 9% per annum thereafter until paid, per V.A.T.S. Art. 5069-1.05, “(Interest) — Rate of judgments”.