author: McDonald, Chief Justice.

text:
    Mary Louise PULLINS, Appellant, v. CREDIT EXCHANGE OF DALLAS, INC., Appellee.
    No. 5576.
    Court of Civil Appeals of Texas, Waco.
    June 24, 1976.
    Rehearing Denied July 29, 1976.
    Vinson, Massingill & Stutzman, Edward R. Vinson, Dallas, for appellant.
    Carrington, Coleman, Sloman, Johnson & Blumenthal, James A. Ellis, Jr., Dallas, for appellee.
   OPINION

McDonald, Chief Justice.

This is an appeal by plaintiff Mary Louise Pullins from a take-nothing judgment in an “unreasonable collection efforts” case.

Plaintiff Mary Louise Pullins alleged that her husband Gus Pullins (now deceased) became indebted to Baylor Medical Center November 20, 1972 for $50., that in April 1973, Baylor turned the account over to defendant Credit Exchange of Dallas, Inc., to collect; that unreasonable collection efforts were made by telephone and mail upon her and Mr. Pullins before and after the debt was paid off by Pullins’ attorney, and after defendant had been advised that Pullins was represented by counsel; and that as a proximate result of such unreasonable collection efforts, Pullins and (plaintiff) his wife suffered physical illnesses and mental pain and anguish, or aggravation thereof. Plaintiff sought actual and exemplary damages on account of both her husband and herself.

Trial was to a jury which in answer to special issues found:

1)Credit Exchange made no unreasonable collection efforts on Gus Pullins.
14) Gus Pullins or his attorney were negligent in: b) Failing to make arrangements for an extension of time for payment of the hospital bill; c) Failing to send Credit Exchange written verification of the payment of the account.
15) Such negligence was a proximate cause of damages, if any, sustained by Gus Pullins.

The trial court rendered judgment on such verdict that plaintiff, both in her own behalf and as heir, widow and representative of the Estate of Gus Pullins take nothing.

Plaintiff appeals on 13 points, pertinent of which are summarized as follows:

1) The trial court erred in not granting a new trial because there was no evidence to support the jury’s answer to issue 1, and such answer is contrary to the overwhelming weight and preponderance of the evidence.
2) The trial court erred in submitting Issues 14 and 15 because contributory negligence is not a valid defense to a cause of action for unreasonable collection efforts.
3) The trial court erred in refusing to submit plaintiff’s requested special issues asking about unreasonable collection efforts made upon Mrs. Pullins.

Contention 1 asserts that the jury’s answer to Issue one, that Credit Exchange made no unreasonable collection efforts on Gus Pullins, is supported by no evidence, or that such answer is against the great weight and preponderance of the evidence.

Gus Pullins was treated at Baylor Medical Center on November 20, 1972 as result of an accident, for which he owed Baylor $50. Baylor billed Pullins several times and when he failed to pay, Baylor on April 24, 1973 turned the bill over to defendant Credit Exchange for collection.

On April 24, 1973 defendant’s employee called Mr. Pullins and requested payment of the debt. Mr. Pullins told defendant’s employee he had an attorney, was expecting a settlement [for his accident] in a few days and as soon as such was made the bill would be paid, and to call his attorney. On April 30,1973 defendant called Mr. Pullins’ Attorney Mr. Thompson, who told defendant that he was negotiating a settlement and the bill would be paid as soon as he did. On May 4, 1973 defendant’s employee called Mr. Pul-lins and demanded payment. Mr. Pullins advised the insurance should have already paid the debt, and that “his attorney would take care of it”. On May 4,1973 defendant sent Mr. Pullins a “Demand Notice” giving Pullins 72 hours to pay the debt or a judgment would be sought. On May 15, 1973 defendant’s employee called Mr. Pullins demanding payment. Pullins told defendant the debt had been paid “last Friday” [on May 11]. Defendant’s employee spoke in a harsh and demanding manner. Defendant on May 15,1973 sent Mr.'Pullins a purported copy of a letter to Baylor in which defendant recommended “that an immediate suit be filed to recover the money due you”. On May 24,1973 defendant’s employee phoned Mr. Pullins demanding payment of the bill. Mr. Pullins told him his attorney had already paid the bill. Defendant demanded “proof” that the bill had been paid, and gave Pullins a deadline of 2 p. m. the following day to furnish “proof” the bill had been paid. Defendant’s employee advised Mr. Pullins if he didn’t pay he wouldn’t be able to go to any hospital.

On May 25, 1973 defendant wrote to Mr. Pullins he could not get credit if he needed it because he had not paid the instant bill; and that “our client reports no record of receiving payment”.

Defendant did not contact Baylor between May 15, and May 29, 1973 to ascertain whether Pullins had paid the bill.

Defendant called Mr. Pullins again on May 31, 1973 demanding payment of the debt to Baylor.

Mr. Pullins was sick with cancer all during the time here involved and died prior to trial from same. There is evidence Mr. Pullins was upset by defendant’s collection efforts; and evidence that Mrs. Pullins answered the telephone and talked with defendant’s employee before Mr. Pullins took the telephone; that Mrs. Pullins was upset, took crying spells as a result of the defendant’s collection efforts.

The trial court’s Issue 1 was: “Do you find from a preponderance of the evidence that from April 30, 1973 to May 31, 1973 Credit Exchange of Dallas, Inc., through its agents, or employees, made any unreasonable collection efforts upon Gus Pullins?”

To which the jury answered “NO.”

We think such answer against the great weight and preponderance of the evidence. We think all defendant’s collection efforts after the date of payment by Mr. Pullins’ attorney to have been unreasonable. In fact after Mr. Pullins advised defendant’s employee the bill had been paid, defendant did not even contact Baylor to determine whether the bill was in fact paid, and at least 4 collection contacts were made by defendant after such bill was in fact paid. Signature Indorsement Co. v. Wilson, CCA (Texarkana) Tex.Civ.App., NRE, 392 S.W.2d 484; Moore v. Savage, CCA (Waco) Tex., NRE, 362 S.W.2d 298.

Contention 2 asserts the trial court erred in submitting Issues 14 and 15 because contributory negligence is not a defense in unreasonable collection efforts case.

The jury found in Issues 14 and 15 that Gus Pullins was negligent in not making arrangements for an extension of time to pay Baylor; in not sending Credit Exchange written verification of the payment of the account; and that such was a proximate cause of Pullins’ damages.

A suit for damages for unreasonable collection efforts is not a suit for negligence, but a suit based on an intentional act. Contributory negligence is thus not a defense in an “unreasonable collection efforts” case. Moore v. Savage, S.Ct., 362 S.W.2d 298; Moore v. El Paso Chamber of Commerce, CCA (El Paso) Tex.Civ.App., NRE, 220 S.W.2d 327; Salazar v. Bond Finance Company, CCA, Tex.Civ.App., NRE, 410 S.W.2d 839; Signature Indorsement Co. v. Wilson, CCA (Texarkana) Tex.Civ.App., NRE, 392 S.W.2d 484.

Contention 3 asserts the trial court erred in refusing to submit plaintiff’s requested issues asking about unreasonable collection efforts made upon Mrs. Pullins.

Mrs. Pullins plead that unreasonable collection contacts and efforts were made upon her (as well as Mr. Pullins). She answered the telephone and defendant’s employee talked to her and demanded payment of the Baylor bill. Mrs. Pullins became nervous, upset and vomited; she had headaches, dizziness and went to the doctor.

The trial court erred in not submitting issues as to Mrs. Pullins. Moore v. Savage, CCA (Waco) Tex.Civ.App., NRE, 359 S.W.2d 95.

The contentions discussed are sustained as indicated.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: BREWSTER, Justice.

license: Public Domain

text:
    Olen W. YANDELL, Appellant, v. TARRANT STATE BANK, Appellee.
    No. 17735.
    Court of Civil Appeals of Texas, Fort Worth.
    June 25, 1976.
    Rehearing Denied July 23, 1976.
    Garrett, Settle & Callaway and Pe veril 0. Settle, Jr., Fort' Worth, for appellant.

      Hudson, Keltner, Smith, Cunningham & Payne and Don C. Plattsmier, Fort Worth, for appellee.
   OPINION

BREWSTER, Justice.

The Tarrant State Bank, appellee, filed this suit against Olen W. Yandell, appellant, as guarantor of a note made by Circle Y Farms, Inc., payable to the order of appel-lee, and did not join the maker of the note as a party defendant in the case.

The appellant filed a plea in abatement alleging that the maker of the note was a necessary party in view of Rule 31, T.R. C.P., and asked that the case either be dismissed or abated until the maker was made a party to the suit. The appellee had in its trial petition alleged two reasons why it says it was not required by law to make the maker of the note a party to the suit against appellant, those reasons being: (1) Circle Y Farms, Inc., was actually or notoriously insolvent and has instituted a bankruptcy proceeding that is still pending, and (2) in the alternative, the joinder of Circle Y Farms, Inc., is unnecessary because in the guaranty agreement it specifically waived its right to require the joinder of the maker of the note as a party to the suit.

The note involved was executed by Circle Y Farms, Inc., by Olen Yandell, on February 9,1975. It was for the principal sum of $12,000.00. The guaranty involved was in writing and was executed by appellant, Olen Yandell, on November 9, 1974. The guaranty agreement, among others, contained the following provisions:

“. . In particular, and without in any way limiting the foregoing, Guarantor waives any right to have Customer joined with Guarantor in any suit brought against Guarantor on this guaranty, and further waives any right to require Bank to forthwith sue Customer to collect the Obligations as a prerequisite to Bank’s taking action against Guarantor under this guaranty. . .

The appellee filed a motion for summary judgment wherein it again alleged that it was not necessary for it to make Circle Y Farms, Inc., the maker of the note, a party to the suit for the two reasons set out above.

The trial court overruled appellant’s plea in abatement and granted a summary judgment in appellee’s favor for $12,000.00 plus $1,200.00 attorney’s fee, with interest on the entire amount from date of judgment at the rate of 9% per annum.

This appeal is brought by appellant, Yan-dell, from that summary judgment.

We reverse the part of the judgment that awards a recovery of attorney’s fees and remand that part of the case for a new trial. The rest of the judgment is affirmed.

Rule 31, T.R.C.P., provides: “No surety shall be sued unless his principal is joined with him, or unless a judgment has previously been rendered against his principal, except in cases otherwise provided for in the law and these rules.”

Article 1986, V.A.T.S., provides:

“The acceptor of a bill of exchange, or a principal obligor in a contract, may be sued either alone or jointly with any other party who may be liable thereon; but no judgment shall be rendered against a party not primarily liable on such bill or other contract, unless judgment be also rendered against such acceptor or other principal ob-ligor, except where the plaintiff may discontinue his suit against such principal obli-gor as hereinafter provided.”

Article 1987, V.A.T.S., provides:

“The assignor, indorser, guarantor and surety upon a contract, and the drawer of a bill which has been accepted, may be sued without suing the maker, acceptor or other principal obligor, when the principal obligor resides beyond the limits of the State, or where he cannot be reached by the ordinary process of law, or when his residence is unknown and cannot be ascertained by the use of reasonable diligence, or when he is dead, or actually or notoriously insolvent.”

The rule and statutes just referred to relating to parties in cases such as this apply to guarantors, both in instances where the guaranty is absolute, and also where it is conditional. Wood v. Canfield Paper Co., 117 Tex. 399, 5 S.W.2d 748 (1928, op. ad.).

The summary judgment appealed from does not show which of the two reasons urged by appellee was considered by the trial court as being the one that authorized the appellee to bring this suit against the appellant guarantor without joining the maker of the note as a party to the suit. Because of that fact the appellant has undertaken to show in his brief, as it had to do in order to get a reversal, that the maker of the note was not actually or notoriously insolvent, and also that the rule and statutes above referred to providing that the maker should be a party to the suit could not be waived. See McKelvy v. Barber, 381 S.W.2d 59 (Tex.Sup., 1964); Hudson v. Buddie’s Super Markets, Inc., 488 S.W.2d 143 (Tex.Civ.App., Fort Worth, 1972, no writ hist.); and LeJeune v. Gulf States Utilities Company, 410 S.W.2d 44 (Tex.Civ.App., Beaumont, 1966, ref., n. r. e.).

In appellant’s 5th and 6th points of error he contends that the trial court erred in holding that the maker of the note, Circle Y Farms, Inc., was either actually or notoriously insolvent. If the maker of the note had been actually or notoriously insolvent then an exception to Rule 31 would have existed. See Art. 1987, Y.A.T.S.

The rule relied on by appellant in this case as entitling him to a reversal is stated in 53 Tex.Jur.2d 655, Suretyship, Sec. 89, as follows: “But where on the face of the record the relationship of the parties appears to be principal and surety, and no excuse is pleaded and proved for nonjoinder of the principal, a judgment against the surety alone is erroneous, irrespective of whether objection was raised in the lower court.”

The only references in the transcript to this insolvency issue are contained in the plaintiff’s petition, the motion for summary judgment, and in the affidavit of Ted Hughes, the president of appellee bank, which affidavit was submitted in support of appellee’s motion for summary judgment.

Appellee’s unsworn petition contained the following allegations: “The maker and principal of the aforesaid promissory note, Circle Y Farms, Inc., is now and was, at the time this suit was instituted, actually or notoriously insolvent in that said corporation has filed a petition in bankruptcy and said bankruptcy proceedings are now pending. Consequently, said corporation is not, and need not be, joined as a defendant herein.”

These allegations were repeated in appel-lee’s unsworn motion for a summary judgment.

The allegations in those pleadings as to insolvency did not constitute any summary judgment evidence that the trial court could consider in determining at the summary judgment hearing that Circle Y Farms, Inc., was actually or notoriously insolvent. Humphreys v. Texas Power & Light Company, 427 S.W.2d 324 (Tex.Civ.App., Dallas, 1968, ref., n. r. e.) and Richardson v. Thompson, 390 S.W.2d 830 (Tex.Civ.App., Dallas, 1965, ref. n. r. e.).

The affidavit of Ted Hughes, president of appellee bank, contained the following statement: “Tarrant State Bank has heretofore received a notice of bankruptcy proceedings concerning Circle Y Farms, Inc., a true and correct copy of which is attached to this affidavit. Tarrant State Bank has not received any notification that said proceedings have been dismissed and said proceedings are believed by affiant to be still pending.”

And attached to that affidavit was a copy of the notice that Hughes swore had been served on Tarrant State Bank advising it that bankruptcy proceedings had been instituted involving Circle Y Farms, Inc.

The statement in the Hughes’ affidavit is the only summary judgment evidence in the record on the insolvency issue. That evidence did not establish as a matter of law that Circle Y Farms, Inc., the maker of the note, was actually or notoriously insolvent.

We therefore hold that appellant is correct in his contentions in points of error Nos. 5 and 6 that appellee did not prove as a matter of law at the summary judgment hearing that the maker of the note was actually or notoriously insolvent. This alone, however, does not entitle the appellant to a reversal of the case. Appellee had alleged that there was another reason why it was entitled to sue the guarantor without joining the maker of the note, said reason being that the guarantor had waived its right to have the maker of the note made a party to the suit.

In appellant’s second, third and fourth points of error he contends that the trial court erred in permitting appellant as guarantor of the note, to be sued without joining the maker as a party defendant, and in holding that the guarantor of the note could legally waive the right given to him by Rule 31 and Articles 1986 and 1987 to have the maker of the note joined in this suit as a party defendant.

We overrule those points of error.

By the paragraph that we have hereinabove quoted out of the guaranty agreement the appellant, guarantor, did expressly waive the right given him by Rule 31 and the statutes referred to, to have the maker of the note joined in this suit as a party defendant. It would be hard to think of language that would more clearly express an agreement to waive that right.

The real question presented here is: assuming that appellant did for a valuable consideration expressly agree to waive his statutory right to have the maker of the note joined in the suit as a party defendant, is the agreement valid and enforceable?

A surety is a favorite in the law. Jarecki Mfg. Co. v. Hinds, 295 S.W. 274 (Tex.Civ.App., Eastland, 1927, writ. dism. in 6 S.W.2d 343).

Rule 31, T.R.C.P., and the above mentioned statutes give the surety the right or privilege of having his principal made a party defendant to any suit brought against the surety. The rights or privileges bestowed by that rule and by those statutes are solely for the benefit of the surety.

The following is from United Benefit F. Ins. Co. v. Metropolitan Plumbing Co., 363 S.W.2d 843 (Tex.Civ.App., El Paso, 1962, no writ hist.), at page 847: “It is well settled that a right or privilege given by statute may be waived or surrendered, in whole or in part, by the party to whom or for whose benefit it is given, if he does not thereby destroy the rights and benefits conferred upon or flowing to another in or from the statute or other legal or equitable source.”

In Zurich General Accident & Liability Ins. Co. v. Fort Worth Laundry Co., 63 S.W.2d 236 (Tex.Civ.App., Fort Worth, 1933, no writ hist.), the Court said: “ ‘The doctrine of waiver from its nature, is applicable, generally speaking, to all rights or privileges to which a person is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the constitution. * * *”’

A person can even waive rights given to him by the constitution. Young v. City of Colorado, 174 S.W. 986 (Tex.Civ.App., Fort Worth, 1915, writ ref.), and see 60 Tex.Jur.2d 194, Waiver, Sec. 10.

A case that is directly in point on the issue of whether or not an agreement to waive the joinder rule is valid and enforceable, is Moore v. Downie Bros. Circus, 164 S.W.2d 420 (Tex.Civ.App., Fort Worth, 1942, no writ hist.). In that case suit was brought on a guaranty agreement in which the guarantor had agreed to waive the join-der of the principal obligor in a suit. Plaintiff’s right to sue the guarantor without making the principal obligor a party was challenged by special exception. The trial court overruled the special exception and it was contended that this ruling was erroneous. The court there said on this point: “Sufficient answer to this contention is that the written obligation sued on, with all its provisions, was specifically pleaded; by its terms defendant agreed that he would perform without involving W. M. Moore (the principal obligor).” Our analysis of that opinion is that the point referred to was one of two grounds on which the case was affirmed. We do not consider the holding to be dicta.

Other opinions wherein the language used indicates that the courts involved believed that rights such as those involved here can be waived are: Universal Metals & Machinery, Inc. v. Bohart, 539 S.W.2d 874, 19 Tex.Sup.Ct.J. 212 (Tex.Sup., 1976), and Zimmerman v. Bond, 392 S.W.2d 149 (Tex.Civ.App., Dallas, 1965, no writ hist.). See also 28 Am.Jur.2d 850, 851, Estoppel and Waiver, Sec. 164; and 60 Tex.Jur.2d 193, Waiver, Sec. 10.

In this case the rights waived were rights created by the rule and statutes involved solely for the benefit of the guarantor (appellant). By waiving his right to have the maker made a party defendant he did not destroy rights and benefits conferred on anyone else by the rule or by the statutes or by any other legal or equitable sources.

We hold that the appellant’s agreement to waive his right to have the maker of the note made a party defendant is valid and enforceable and that the trial court did not err in overruling appellant’s plea in abatement.

In appellee’s petition it pleaded this waiver as entitling it to bring the action without joining the Circle Y Farms, Inc., as a party, and at the summary judgment hearing ap-pellee proved by affidavit the execution of the guaranty agreement by Yandell and its contents. We are convinced that appellee established its right to the summary judgment for the $12,000.00.

After we had prepared the opinion in this case, but before it had been handed down, we have received a copy of the opinion of the Beaumont Court of Civil Appeals in the case of Walter Cook v. Citizens National Bank of Beaumont, 538 S.W.2d 460 which opinion was handed down on June 10,1976.

In the Cook case the principal question before the court was whether Rule 31 and the related statutes apply in instances where the guarantor has become primarily liable by contract on the debt. Up until the decision in the case of Wood v. Canfield Paper Co., supra, there had been a conflict in the decisions on that point. That case held that the statute which is now set out in Rule 31 and its related statutes apply even if the guarantor is primarily liable. They apply to both absolute and conditional guarantors. Since the Supreme Court adopted the opinion of the Commission of Appeals in the Wood case, and has not overruled it as far as we can find, we agree with the Beaumont Court in its conclusion that the holding in the Wood v. Canfield case is still the law.

The holding in the Cook case has not changed our opinion hereinabove announced, that the requirement of Rule 31 and its related statutes that the maker of a note be made a party in a suit against a guarantor of said note can be waived by the guarantor.

Appellant’s 7th point of error is that the trial court erred in awarding attorney’s fees in this case by summary judgment.

We sustain the point.

The guaranty agreement sued on contained the following provision relating to attorney’s fees: “Whenever an attorney is used to collect or enforce any rights of Bank against Guarantor under this guaranty, whether by suit or other means, Guarantor agrees to pay to Bank a reasonable attorney’s fee, which shall in no event be less than ten per cent of the amount owing to Bank hereunder, together with all other costs and expenses of collection.” (Emphasis supplied.)

In appellee’s trial petition it pleaded that there was $12,000.00 unpaid on the note to the Bank, that it was past due, that it had to hire an attorney to enforce its guaranty agreement and that it was entitled to recover under the agreement an additional amount of $1,200.00, which was reasonable as an attorney’s fee. It prayed for a recovery of that amount as attorney’s fees. This amount would be 10% of the principal amount owed to the bank. The defendant’s answer only contained a general denial.

In its motion for summary judgment the Bank also asked for recovery as attorney’s fees of a sum equal to 10% of the $12,000.00 principal due on the note. The summary judgment awarded the Bank a recovery of 10% of the amount that was unpaid, that is $1,200.00 as attorney’s fees.

The case of Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (1960) involved the law relating to recovery of attorney’s fees in cases similar to the one here involved. The note there sued upon provided for the recovery of 10% attorney’s fees if the note was placed in the hands of an attorney for collection. A summary judgment was rendered awarding 10% of the unpaid balance of the note as attorney’s fees. The following is from the opinion in that case at page 950:

“It is now settled that as between the legal owner and holder of a promissory note and those who are obligated to pay the same, the former is prima facie entitled to recover the attorney’s fees stipulated therein upon the happening of the contingency which makes the same payable. In the absence of an issue affirmatively tendered by the defendant, it is not necessary for the plaintiff to prove an agreement to pay such fee to an attorney or that the same is reasonable. The usual attorney’s fee clause is, however, in the nature of a contract of indemnity and cannot be regarded as providing for liquidated damages or a penalty. Upon a proper showing the holder will be limited to an amount which is reasonable under the circumstances, and may be denied any recovery where it appears that no expense has been incurred as a result of the maker’s default.”

In International Shelters v. Corpus Christi St. N. Bank, 475 S.W.2d 334 (Tex.Civ.App., Corpus Christi, 1971, no writ hist.), the maker of the note had agreed to pay 15% of the unpaid amount as attorney’s fees. The plaintiff sued on the note and for the attorney’s fees therein provided for. The court granted summary judgment for plaintiff for the balance due on the note plus 15% thereof as an attorney’s fee. The defendant’s only pleading was a general denial. It did not file defensive pleadings. That court said at page 336:

“The affirmative defense of unreasonableness of attorney’s fees must be both pled and proved. This is supported by numerous authorities. The court went ahead to hold that where the 15% attorney’s fees agreed upon by the parties was not alleged by defendant to be unreasonable proof of the reasonableness of the percentage that the maker and payee have fixed by contract is not required. The court said further at page 337: “If appellant expected to defeat the motion for summary judgment by showing genuine issues of fact with respect to reasonableness of attorney’s fees . it was incumbent on it to first affirmatively plead these defenses.”

The situation involved in this case is not the same as was involved in the Kuper case and in the International Shelters case, both supra. In each of those cases the agreement as to attorney’s fees was that a fixed percentage of the unpaid sum would be paid as attorney’s fees. There was in those cases no specific agreement to pay a reasonable attorney’s fee. The requirement that the percentage agreed upon would have to provide a sum that would not be unreasonable was brought into the picture by the courts upon their holding that the attorney’s fee agreements were generally contracts of indemnity, as distinguished from agreements providing for liquidated damages.

In the case at hand the parties agreed that the maker would pay the payee a “reasonable” attorney’s fee whenever an attorney is used to collect the balance due on the note. It is true that they further agreed that the attorney’s fee would in no event be less than 10% of the amount owed on the note. But, bearing in mind that such agreement for recovery of attorney’s fees has been declared by the Supreme Court (see the Kuper case, supra) to be one of indemnity, as distinguished from an agreement to pay liquidated damages, no attorney’s fee at all could be recovered under this agreement, 10% or otherwise, unless the amount recovered was a reasonable fee for the services rendered in collecting the balance of the note. Since the agreement was to pay a “reasonable” attorney’s fee, the plaintiff had the burden of pleading and proving what would be a reasonable attorney’s fee for the services rendered to him in collecting the note. This statement applies even if the amount sought as attorney’s fees is 10% or less of the unpaid balance.

The question of what sum would constitute a “reasonable” attorney’s fee, which question had to be determined in this case, is a fact issue that cannot be determined at a summary judgment hearing. Lindley v. Smith, 524 S.W.2d 520 (Tex.Civ.App., Corpus Christi, 1975, no writ hist.) and Coward v. Gateway Nat. Bank of Beaumont, 525 S.W.2d 857 (Tex.Sup., 1975).

A case that supports our holding that the learned trial court erred in awarding attorney’s fees at the summary judgment hearing under the facts of this case is Bellah v. First National Bank of Hereford, 474 S.W.2d 785 (Tex.Civ.App., Eastland, 1971, ref., n. r. e.). There the same result that we have reached was reached in a case where the attorney’s fee provision was practically the same as the one involved here. The note involved in the Bellah case provided that the persons personally liable on the note agreed to pay “an additional amount equal to a reasonable sum no less than 10% of the principal and interest then remaining unpaid ... as attorney’s . fees . . . .” The opinion in the Bellah case does not disclose what amount was awarded by the trial court as attorney’s fees. In view of that omission we obtained a copy of the trial court’s judgment that was appealed from in the Bellah case and find that the trial court awarded as attorney’s fees 10% of the amount of the unpaid principal and interest due on the note.

That is what the trial court did in the case before us and the court in the Bellah case held that in awarding attorney’s fees under the facts of that case the court determined a fact issue, which it could not do in a summary judgment hearing. The fact issue that it did determine was that the amount awarded, the 10% of the unpaid principal and interest, was a reasonable attorney’s fee under the facts there involved.

All contentions urged by both parties have been considered and those that are not hereinabove expressly acted on are hereby overruled.

The part of the judgment that awards attorney’s fees is reversed and that part of the case is remanded for a new trial of the attorney’s fee issue. The rest of the judgment is affirmed. Costs of the appeal are taxed against appellee.


author: MASSEY, Chief Justice.

text:
    Billy GRAHAM et al., Appellants, v. Marilyn Pruett DARNELL et al., Appellees.
    No. 17738.
    Court of Civil Appeals of Texas, Fort Worth.
    June 25, 1976.
    Rehearing Denied July 23, 1976.

      Fillmore, Lambert, Farabee, Purtle & Lee, and Clyde Fillmore, Wichita Falls, for Billy Graham Evangelistic Ass’n and Billy Graham, Individually.
    J. Walter Friberg and Elmer H. Parish, Wichita Falls, for First Baptist Church, Wichita Falls, Texas.
    Nelson, Sherrod & Carter, and Eugene Sherrod, Wichita Falls, for appellees.
   OPINION

MASSEY, Chief Justice.

Appeal is from order of the County Court denying applications, separately made, to admit either of two separate wills to probate, and to continue temporarily the administration of a deceased’s estate theretofore granted upon application of a natural daughter.

Judgment is affirmed.

At the outset we are presented with motion of the contestants (of both wills) to dismiss the Billy Graham Evangelistic Association as a party to the case. Our examination of the records reflects that if such association is interested in the litigation it could only be through an assignment by proponents of one or the other of the proffered wills. There is nothing in the record to reflect this fact, if indeed it is a fact. To permit the association to participate in the appeal could only confuse. The motion is granted and the Billy Graham Evangelistic Association is dismissed as a party.

For background of the case, as essential to additional discussion, chronology noted is as follows:

1. 1930, year in which Sadie Pruett married Tom Pruett, the testator in both wills hereafter noticed.
2. 1949, year in which Jimmie, son of Sadie and Tom Pruett sustained injuries and died.
3. 1951, year in early part of which Sadie and Tom Pruett were divorced, and after which there was total estrangement of Tom Pruett from his children. The two minor children, Marilyn Pruett Darnell and her brother, William, were then arrived at the approximate ages of 17 and 16, respectively.
4. 21 October 1965, date of first of the wills signed by Tom Pruett, commonly termed the Church Will. At that time Marilyn Pruett Darnell was 32 years of age and William Pruett was 31 years of age.
5. 10 June 1974, date of the second will signed by Tom Pruett, commonly termed the Billy Graham Will. Recited therein was testator’s revocation of all wills by him theretofore made. At that time Marilyn Pruett Darnell was married and had three children, two of which were adopted. At that time William Pruett had three children, these being mentioned in the second will as “I have three grandchildren, who are the children of my son, Billie Pruett.”
6. 29 January 1975, Tom Pruett died.
7. 20 March 1975, or within a few days therefrom, proceedings were filed with the County Clerk of Wichita County, Texas, pursuant to V.A.T.S. 17A, Probate Code, Sec. 11, “Applications and Other Papers to be Filed With Clerk.” Pleading by which the trial court acquired jurisdiction was the petition by Marilyn Pruett Darnell for letters of administration. Attachments thereto included both the wills signed by Tom Pruett, deceased, Mrs. Darnell’s contest thereof being presented by her pleading. Her brother, William H., thereafter filed his pleading by which he joined with Mrs. Darnell in contest of both wills. Letters of temporary administration were granted to Mrs. Darnell.

Subsequently all necessary and proper parties were brought before the trial court, which proceeded to trial without a jury, and rendered the judgment appealed from. The First Baptist Church of Wichita Falls, Texas, and Billy Graham, were the only parties perfecting appeal. The church was named as a beneficiary in the first, or Church Will, and was proponent of its admission to probate. Mr. Graham was named as a beneficiary in the second will and was proponent of its admission to probate.

In this non-jury trial no findings of fact or conclusions of law were filed by the trial court, none having been requested.

It is settled that in a non-jury trial when findings of fact and conclusions of law were 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.Sup., 1968), and Crawford v. Boyd, 453 S.W.2d 232 (Fort Worth Civ.App., 1970, ref., n.r.e.). The following is from Crawford v. Boyd, supra: “In such a case the trial court’s judgment implies that all necessary fact findings were made by that court in support of the judgment. . . . ”

We are required to apply the law referred to in deciding this case.

And in such a case where there is complaint that some necessary fact finding was so contrary to the great weight and preponderance of the whole of the evidence proper to be considered as to be clearly erroneous it becomes necessary to review the entire evidentiary record in making applicable tests. In re Kint’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Other than as applied to complaints of admission and consideration of certain evidence in violation of the “Dead Man’s” statute, to be hereafter noticed, the basic contentions of both the First Baptist Church and of Billy Graham are that there was no evidence of probative force and effect to support the judgment; and that such evidence as there was was insufficient to support the findings upon which the judgment was based, or that the findings made were so contrary to the greater weight and preponderance of the evidence as to be clearly erroneous.

Actually, contestants having at the initial state timely resisted the admission of any will to probate the burden of proving testamentary capacity was upon proponents, against whom judgment was rendered. Under these circumstances proponents’ only available point of error would be one by which they contended that the judgment, and underlying findings for contestants, was so contrary to the great weight and preponderance of the evidence as to be clearly erroneous. Galindo v. Garcia, 199 S.W.2d 499 (Tex.Sup., 1947), and the dissenting opinion of Judge Murray in Garcia v. Galindo, 199 S.W.2d 488, 498 (Tex.Civ.App., San Antonio, 1946).

If both the wills were properly executed there would be error in the judgment only if either at time of the execution of the Church Will in 1965, or at the time of the execution of the Billy Graham Will in 1974, we should justifiably conclude that the trial court should not have concluded, as it did, that Tom Pruett, testator, lacked testamentary capacity because he was laboring under an insane delusion or delusions that his children had abandoned him, hated him, were unjustifiedly ungrateful, etc., thus causing him to fail to materially provide for them by either will.

The deceased certainly had the ability to know and understand the effect of making his will on both occasions when they were signed to know and understand the nature of kinship to his children, and their claim upon him by reason thereof, and to know and understand the general nature and extent of his bounty, etc. In other words it appears to be conceded by all parties that Tom Pruett did at all material times possess testamentary capacity—save and except for the questions existent upon insane delusion.

In the Church Will each of the children was given $5.00. In the Billy Graham Will, Marilyn was not mentioned at all; and though William was mentioned in the Billy Graham Will he was given nothing thereby, although each of his three children was therein bequeathed $2,000.00 (with notation of an earlier purchase for each a $2,000.00 Series E Bond). The exact value of the estate of the decedent was not established by the evidence. By the Church Will the First Baptist Church was given substantially the whole of testator’s estate; by the other will, in which earlier will was revoked, Mr. Graham was given $100,000.00 with the Church given nothing.

In Texas an insane delusion, such as will vitiate a last will and testament is “ ‘the belief of a state of supposed facts that do not exist, and which no rational person would believe’ ”, Knight v. Edwards, 153 Tex. 170, 264 S.W.2d 692, 695 (1954).

In Knight is considerable discussion which enables one to have full understanding of the meaning of the words of the definition in resolving issues in cases having different factual backgrounds. In the instant case the test is whether the contestants’ evidence establishes the absence of any factual basis for a belief which no rational person would entertain, but which belief the deceased Tom Pruett unjustifiably did entertain, that his children had “divorced themselves” from him, had been caused by their mother to become estranged from him with their concurrence, that they were unjustifiedly ungrateful, and that they hated him and desired to remain estranged.

By the whole of the voluminous evidence presented the trial court, as the fact finder, we believe that the trial court could have found either way on this question as of the time the deceased signed either or both wills without committing error. As heretofore noticed it is to be presumed, due to the absence of findings of fact and conclusions of law, that there were findings that Tom Pruett, deceased, was laboring under insane delusions to the identical specified effects on both occasions when he signed wills.

The finding of insane delusion on the part of the deceased was undoubtedly made as applied to the Billy Graham Will as of the time it was signed, it unquestionably having been executed according to the requirements of law. This was so because the evidence established testamentary capacity unless destroyed by insane delusion. A like finding as applied to the Church Will was undoubtedly made, but not necessarily. As applied thereto evidence raised the additional question of whether the Church Will had been executed in the presence of two subscribing witnesses. Thus there would be the additional presumed finding on the part of the court that the Church Will had not been executed in accordance with legal requirements. If not so executed and validated it would be inadmissible to probate for this additional reason. Such presumed finding was not contrary to the great weight and preponderance of the evidence.

There is little doubt that the proponents of each will were wise in their election to try the issues before the court. In view of the evidence any jury which might have received the case could not have failed to be influenced in behalf of the contestants. It clearly appeared therefrom that until Tom Pruett’s estrangement from his children, whether by his choice or otherwise, the deceased had always neglected and/or mistreated both, and his son Jimmie as well, prior to his death in 1949.

In brief there seems to be no question but that the deceased had been high tempered, emotional, an exceedingly harsh disciplinarian of his children, and a person disposed to “carry a grudge” against anyone—especially anyone who was or had been close to him because of business relationship, friendship or kinship—from whom he had received actual or imagined mistreatment or imposition, or had received a real or fancied slight. The above was true from the time his children were very small, continuing and persisting until the accidental death of his son Jimmie in 1949.

Here there began to be questions and issues which are in controversy, but by substantial evidence it was shown that about the time of Jimmie’s fatal accident the aforedescribed characteristics and personality traits of the deceased became aggravated, with an increased effect as time passed. He began to deem Jimmie as having been his only “good” child, and that the remaining children were “Tom Pruett haters”. Without foundation in fact, and indeed contrary to facts proved, he blamed his wife for Jimmie’s death through concluding that it had been his wife who had given Jimmie permission to go on the camping trip during the course of which he sustained his fatal accident.

There were many instances in which it was shown that his actions and reactions to real and to imagined circumstances (in which there was no foundation in fact) displayed his paranoid condition earlier than 1949, and its development and aggravation after 1949. As applied to many of these there was medical opinion testimony by which the paranoia was proved, supported upon delusions as a factor. Insane delusion at the material times and in material aspects, constituting mixed questions of law and fact, became determinative issues by the evidence. Whether as applied to testamentary capacity insane delusions actually existed at time of, and controlled, the purported efficient execution of each of the wills was clearly raised.

Upon the very material issue of insane delusion the court, clearly a dispassionate fact-finder, is presumed to have made the necessary determinations. Prom the evidence of' the contestants, especially that which applied to Tom Pruett’s son William (who was shown to have stood ready and willing to establish a filial relation with the deceased if only afforded the opportunity, and to have at various times gone to some effort so to do only to meet with rebuff), it was shown that there was no foundation in fact upon which the deceased could have acted to their detriment by any will in either 1965 or 1974 had he been rational upon the matter of events pertaining to his relationship to them. In any event the evidence produced by contestants had probative force and effect; and the implied findings of want of testamentary capacity on both the material occasions, upon which judgment was based, were in no respect so contrary to the greater weight and preponderance of the whole of the evidence as to be clearly erroneous.

There was evidence in the case contended by proponents to have been erroneously received because of the “Dead Man’s” statute, V.A.T.S. Art. 3716, “(Evidence) — In actions |jy or against executors, etc.” Their identical contentions are that William H. Pruett was permitted to testify concerning transactions with his deceased father and that admission of his evidence amounted to harmful error.

There exists a question upon whether the First Baptist Church had waived its right to complain. The waiver in question was because of the production of the same witness’ testimony upon the same transactions when his deposition was taken prior to trial. Thereat the attorney for the First Baptist Church was not present. His prior stipulation made, relative to the taking of the deposition, was that questions asked the witness by any attorney for any other party might be considered as having been asked by him. With such stipulation honored there resulted a waiver of the right of the First Baptist Church to complain at time of trial. Jackson v. Jones (Mumford’s Executor), 74 Tex. 104, 11 S.W. 1061 (1889); Allen v. Pollard, 109 Tex. 536, 212 S.W. 468 (1919); Hopkins v. Robertson, 138 S.W.2d 310 (Tex.Civ.App., Fort Worth, 1939, error refused); and the article in 27 Tex.Bar Journal, May, 1964, p. 315, by the Honorable Ruel C. Walker, Associate Justice, Supreme Court.

Billy Graham did not make any like stipulation. Graham’s attorney was present at time the deposition of William H. Pruett was taken, but he asked' no questions. Upon the ' trial such attorney did object under provisions of the “Dead Man’s” statute when questions were asked William H. Pruett concerning the same transactions. The trial court declared that he would hear all of the witness’ evidence, holding his ruling on the objection in abeyance; that should he conclude that the evidence was inadmissible be would not consider it, but that in such event the evidence would stand in the record as a bill of exception by contestants because of its exclusion.

William H. Pruett was recalled by the attorney for the First Baptist Church after he had first testified over objection. Upon being recalled he was interrogated by the attorney for the First Baptist Church concerning a certain transaction upon very late occasion in the life of the deceased. It amounted to a transaction with deceased by William H. Pruett at that time. Billy Graham’s attorney did not object. Interests of the clients of these attorneys were adverse, one to the other. The transaction inquired about was not necessarily related to anything which could have resulted in harm to the interests of Billy Graham nor was it related to prior transactions, evidence of which might have been harmful. We hold that there was nothing in the occurrence and in the failure to object to the testimony that amounted to waiver by either Graham or the First Baptist Church of rights under the “Dead Man’s” statute, it constituting a distinguishable transaction. Jackson v. Jones (Mumford’s Executor), supra.

We hold that it would have been error as to Billy Graham for the trial court to have considered the evidence complained of on William H. Pruett’s transactions with the deceased, while at the same time it would not have been error to have done so in the case of the First Baptist Church. The reason would be its waiver of right to complain by stipulation upon the deposition, coupled with the questions asked the witness at that time by contestants.

From the record it is not clear whether there was consideration of the evidence of William H. Pruett when the court determined the issues and rendered judgment. We have tested the evidence as though the trial court disregarded such, as will be presumed, and have concluded that in the determination of the case as applied to Billy Graham’s interest the facts impliedly found in support of the judgment were not so contrary to the greater weight and preponderance of the evidence so as to be clearly erroneous. In view thereof no reversible error as applied to Billy Graham would be shown. Furthermore, even if we err in holding waiver to exist as applied to the First Baptist Church, there would for a like reason be an absence of any reversible error as applied to it upon the same presumption, i. e., that in arriving at judgment William H. Pruett’s testimony relative to transactions with the deceased was disregarded by the court.

By our discussion we have severally considered and overruled all contentions by all points of error of both the First Baptist Church of Wichita Falls, Texas, and Billy Graham.

Judgment is affirmed.


author: JAMES, Justice.

text:
    Corynne PARKS, Appellant, v. WHITNEY INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 5527.
    Court of Civil Appeals of Texas, Waco.
    June 30, 1976.

      Harold 0. Clark, Waco, for appellant.
    Giles E. Miller, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is an appeal from a summary judgment concerning a suit for delinquent school taxes. Plaintiff-Appellee Whitney Independent School District of Hill County, Texas, brought this suit against Defendant-Appellant Mrs. Corynne Parks for delinquent taxes, penalty, and interest for the years 1968 through 1973 inclusive, alleged to be due and owing on certain real estate located in said School District, in the total amount of $1566.62, plus attorneys’ fees and costs, and foreclosure of the tax lien on said land. After Defendant answered, the Plaintiff School District filed an unsupported motion for summary judgment. The Defendant filed an affidavit of Corynne Parks in opposition to the motion for summary judgment setting up certain fact issues not necessary to detail here.

The trial court granted summary judgment in favor of Plaintiff School District against Defendant for taxes, penalty and interest in the amount of $1629.22, plus interest from judgment, $244.38 attorneys’ fees, court costs, and foreclosure of the tax lien on the subject real estate. From this judgment, the Defendant appeals. We reverse and remand.

Defendant-Appellant comes to this court on four points of error complaining of said summary judgment, the first point being that the motion for summary judgment is entirely unsupported by competent summary judgment evidence. We sustain this point. Said motion was supported by nothing except Plaintiff School District’s sworn original petition. Our Supreme Court has held that pleadings, even if sworn to, are not competent summary judgment evidence. Hidalgo v. Surety Savings and Loan Association (Tex.1971) 462 S.W.2d 540. Therefore the summary judgment cannot stand.

Defendant-Appellant has other points of error; however, it is not necessary that these be discussed, except to point out that the record shows the existence of material fact issues that would in any event render a summary judgment improper. Rule 166A, Texas Rules of Civil Procedure; Gulbenkian v. Penn (Tex.1952) 151 Tex. 412, 252 S.W.2d 929; Gaines v. Hamman (Tex.1962) 163 Tex. 618, 358 S.W.2d 557; Christy v. Stauffer Publications, Inc. (Tex.1969) 437 S.W.2d 814.

We accordingly reverse the trial court’s judgment and remand the cause for trial on the merits.

REVERSED AND REMANDED.


author: FINCH, Judge.

text:
    STATE of Missouri ex rel. MILLER’S MUTUAL INSURANCE ASSOCIATION OF ILLINOIS, Relator, v. Honorable James L. SANDERS, Judge, Circuit Court of the City of St. Louis, State of Missouri, Respondent.
    No. 59350.
    Supreme Court of Missouri, En Banc.
    July 12, 1976.
    Emmett M. O’Brien, St. Louis, for relator.
    Robert E. Staed, St. Louis, for respondent.
   FINCH, Judge.

This is a consolidation of two original proceedings in prohibition which seek to prevent respondent from taking any further action in two cases filed in the Circuit Court of the City of St. Louis. The basis of relator’s contention is that under § 508.-040, the applicable venue statute, venue in these two cases does not lie in the City of St. Louis and respondent should have sustained relator’s motions to dismiss for lack of venue. We now make permanent the provisional rule in prohibition heretofore issued, prohibition being an appropriate remedy where venue is improper. State ex rel. Toberman v. Cook, 365 Mo. 274, 281 S.W.2d 777 (banc 1955).

Relator, an Illinois insurance corporation licensed to transact insurance business in Missouri, is the defendant in separate causes of action filed against it in the Circuit Court of the City of St. Louis by Rodney N. Lumley and Alice Sumner, both residents of the City of St. Louis. Plaintiffs in said suits, relying on uninsured motorist coverage provisions in policies issued to them by relator, seek recovery for damages received in separate accidents with uninsured motorists which occurred in St. Louis County. Relator, specially limiting its appearances for the purpose of the motions, filed motions to dismiss on the basis of lack of venue in the City of St. Louis. These motions were overruled and the petitions for writ of prohibition followed.

The applicable venue statute is § 508.040 which in pertinent part provides as follows:

“Suits against corporations shall be commenced either in the county where the cause of action accrued ... or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.”

It is undisputed that the suits by Lumley and Sumner cannot be maintained in the City of St. Louis on the basis that relator company has an office or agent for the transaction of its usual and customary business there because it maintains no office in the City of St. Louis. It does have an office in St. Louis County. Hence, if there is venue in the City of St. Louis, it must be on the basis that the causes of action accrued there.

Pointing out that the courts of Missouri have held that actions to recover under the uninsured motorist coverage of an insurance contract are actions in contract, Crenshaw v. Great Central Insurance Co., 527 S.W.2d 1 (Mo.App.1975), Noland v. Farmers Insurance Exchange, 413 S.W.2d 530 (Mo.App.1967), Hill v. Seaboard Fire & Marine Insurance Co., 374 S.W.2d 606 (Mo.App.1963), respondent argues that a cause of action in contract accrues when and where payment thereunder should be but is not made. In this case, says respondent, this was in the City of St. Louis where both insureds live.

On the other hand, relator argues that the occurrence giving rise to a cause of action by an insured to recover under uninsured motorist coverage policy provisions is the accident involving an uninsured motorist. Since both accidents occurred in St. Louis County, it is relator’s position that the causes of action accrued there.

It is true, as respondent points out, that in Crenshaw, Noland, and Hill it has been held that actions to recover pursuant to uninsured motorist coverage are actions in contract. However, those cases did not hold that the causes of action are based on breach of a contract or that they accrue in the county where insured resides. As a matter of fact, Hill held that the plaintiff-insured has the burden to establish that the other motorist was uninsured, that he was legally liable to insured for injuries received and the amount of damages. Until the plaintiff-insured has sustained his burden of so establishing, the insurer has not breached any provision of the contract of insurance relative to uninsured motorist coverage. Such a situation differs materially from one involving simply a refusal to pay a sum due under a contract.

This distinction was recognized in Moherstadt v. Harry Newman, Inc., Motor Cars, 204 Mo.App. 619, 217 S.W. 591 (1920). In discussing venue in that case, the court stated, 217 S.W. at 592:

“ * * * Many of the cases cited and relied on by plaintiff do not deal with a mere refusal to pay or perform a contract obligation, but are cases for damages on tort or cases which, though bottomed on contract, involve acts which are held to accrue the cause of action, which in reality create the cause of action. Of this latter class of cases are insurance cases for, while bottomed on contract, they are not suits for breach of contract, since it cannot be said that the loss of property by fire or the death of the insured is a breach of the insurance contract, but rather that the loss or death first brings the cause of action into being. There is no difficulty, therefore, in holding that the death of the insured or the destruction of the insured property accrues the cause of action, and the place of such event fixes the place of bringing suit where, as here, the suit may be brought where the cause of action accrues. * * * tf

Various Missouri decisions support what the court said in Moherstadt. In Johnston v. Progressive Life Ins. Co., 239 Mo.App. 184, 192 S.W.2d 649 (1946), plaintiff, the beneficiary in a life insurance policy, brought suit after death of the insured to recover the death benefit provided in the policy. The insured had died in Greene County but plaintiff brought suit in Jackson County where he resided. The court of appeals affirmed the action of the trial court in dismissing the case for lack of venue, holding that the cause of action came into being where and when the insured died and that the county where the death occurred was where the cause of action accrued. In so holding the court said, 192 S.W.2d at 650: “The law is well settled that a cause of action based on a life insurance policy accrues where insured’s death occurs.” Other cases so holding include Roberts v. American National Assurance Co., 201 Mo.App. 239, 212 S.W. 390 (1919); Bankers Life Assn. v. Shelton, 84 Mo.App. 634 (1900); and Rippstein v. St. Louis Mutual Life Insurance Co., 57 Mo. 86 (1874).

Similarly, Missouri courts have held that under a statute establishing venue at the place where the cause of action accrues, the cause of action for recovery on a fire insurance policy accrues where the property is destroyed by fire. McNabb v. National Liberty Ins. Co. of America, 239 Mo.App. 435, 188 S.W.2d 523 (1945); Wicecarver v. Mercantile Town Mut. Ins. Co., 137 Mo.App. 247, 117 S.W. 698 (1909). It does not accrue in the county where insured resides on the theory that payment is to be made there.

Applying the reasoning of the foregoing cases, we conclude and hold that the cause of action for recovery under the uninsured motorist coverage of an insured’s liability policy accrues where the accident with the uninsured motorist occurs. This conclusion is consistent with the reasoning and result in Continental Casualty Co. v. Thomas, 458 S.W.2d 863 (Tex.Civ.App.1970), a suit seeking recovery on the basis of uninsured motorist coverage. The Texas venue statute, Art. 1995 § 23, Tex.R.Civ.St. (1969), authorized suit “in the county in which the cause of action or part thereof arose”. The court held that for venue purposes the cause of action to recover for uninsured motorist coverage accrued in the county where the collision with the uninsured motorist occurred. In so holding, the court said, 458 S.W.2d at 864:

“Appellees had no cause of action against appellant by virtue of the provisions of the ‘uninsured motorist’s insurance’ until they were injured by the acts of Montgomery, the uninsured driver of the automobile. Appellees could not recover until it was shown that Montgomery caused the damage. It was the negligent acts of Montgomery that caused the damage. Consequently, appellees were injured in Potter County where the cause of action or a part thereof arose * * .”

Respondents seek to distinguish this case on the basis that the statute, unlike ours, authorized suit in the county where the cause of action “or a part thereof” accrued. We perceive no basis for making a distinction on that basis. The reasoning of the court indicates clearly that a similar result would follow even if the language as to a part of the cause of action were eliminated.

Respondent’s brief cites and relies on Gardner Engineering Corp. v. Page Engineering Co., 484 F.2d 27 (8th Cir. 1973); Deering Milliken Research Corp. v. Textured Fibers, Inc., 310 F.Supp. 491 (D.S.C.1970); State ex rel. Cummins v. Eversole, 332 S.W.2d 53 (Mo.App.1960); and Wood v. Saylor Tie & Timber Co., 67 S.W.2d 826 (Mo.App.1934). They are not comparable and are not persuasive in this case. Gardner dealt with a claim for anticipatory breach of a contract, Deering was an action to recover underpayments under a licensing agreement, Eversole involved negligent failure to repair a car, and Wood was a suit to recover for breach of contract for sale of railroad ties.

Respondent also cites 44 Am.Jur.2d, Insurance, § 1898 (1969), which indicates that the cause of action for breach of an obligation to pay a loss under an insurance policy accrues in the county of insured’s residence. In a footnote to the above statement, the case of Halliwill v. Mutual Service Casualty Insurance Co., 257 Minn. 252, 100 N.W.2d 817 (1960), is cited. It is obvious that Halli-will and the quoted text from Am.Jur.2d are inconsistent with what Missouri courts have held in Moherstadt, Johnston, Roberts, Bankers Life, Rippstein, McNabb and Wice-carver. We decline to overrule those cases.

It follows that venue in the Lumley and Sumner cases is not vested in the Circuit Court of the City of St. Louis.

Writ permanent.

All concur.

      . Relator complied with rule 84.22 by first seeking a writ of prohibition in the Missouri Court of Appeals, St. Louis District. That court denied the applications after which relator sought relief in this court.

      . Statutory references are to RSMo 1969 unless specified otherwise.