author: MOORE, Justice.

text:
    COMMISSIONERS COURT OF ANDERSON COUNTY, Texas, et al., Appellants, v. Jerry L. CALHOON, Appellee.
    No. 1228.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 22, 1978.

      M. Gaddy Wells, Melvin D. Whitaker, Paxton, Whitaker & Parsons, Palestine, for appellants.
    Jerry L. Calhoon, A. D. Henderson, McDonald, Calhoon & Kolstad, Palestine, for appellee.
   MOORE, Justice.

Plaintiff, Jerry L. Calhoon, filed suit against defendant, N. R. Link, County Judge of Anderson County, Texas, as well as the Commissioners Court and the Tax Assessor of Anderson County, for a permanent injunction seeking to enjoin the defendants from putting into effect an allegedly unlawful scheme or plan of taxation and from the collection of ad valorem taxes based thereon. Plaintiff alleged that the defendants were about to adopt a tax plan by which all rural unimproved land would be valued at $48.00 per acre, irrespective of market value, whereas all improved property situated in the county was to be valued on the basis of fair market value. Plaintiff alleged that under the proposed plan, he and other taxpayers, whose property consisted primarily of improved property in the nature of a residence, would be required to bear a greater share of the tax burden than those taxpayers who owned unimproved property valued at the arbitrary figure of $48.00 per acre or one-sixth of its market value. Plaintiff further alleged that the proposed illegal plan was arbitrary and discriminatory and if allowed to be adopted would result in substantial injury to him and other homeowners similarly situated because it would result in their paying more than their fair share of the ad valorem tax burden of Anderson County. His prayer was for a permanent injunction enjoining defendants from putting the plan into effect and from collecting any taxes on his property based on such illegal plan. After a trial before the court, sitting without a jury, the trial court entered judgment permanently enjoining defendants from “making or certifying or approving any of the present tax rolls.” Whereupon defendants perfected this appeal.

We reverse and dismiss.

The record reveals that plaintiff’s suit was instituted on July 28, 1978. Judgment was thereafter rendered on August 17, 1978, prior to the time the Commissioners Court of Anderson County, Texas, sitting as a Board of Equalization, had adjourned or certified the 1978 tax rolls. The judgment recites that the court was of the opinion that a permanent injunction should be granted for the following reasons:

(1) The tax rolls have been prepared, but not certified nor approved.
(2) The rural acreage in the County has been included upon the tax rolls thus prepared at an assessed evaluation of $12.00 an acre, which is arrived at by utilizing twenty-five percent (25%) of $48.00 per acre.
(3) Rural acreage in Anderson County has a minimum fair market value of $300.00 to $325.00 per acre.
(4) The $12.00 an acre valuation has been used with no consideration given to the market value of said land.
(5) Residential property, including the Plaintiff’s, has been systematically included on the tax rolls by using a formula that gives consideration to market value, and values said property at one-fourth (¾) of fifty percent (50%) to sixty percent (60%) of its fair market value.
(6) The result of the utilization of $12.00 an acre valuation for the rural acreage has been to include on the tax rolls prepared such property at no more than twenty-five percent (25%) of one-sixth (⅛) of its fair market value.
(7) Residential properties, including the Plaintiff’s, will carry approximately three (3) times the tax burden as will rural acreage of equal value if the present tax rolls are certified.
(8) The Tax Assessor Collector has not prepared the existing tax rolls; rather, they have been prepared by an employee, Wilson Buckley, hired by and working under supervision of the Commissioners Court.
(9) The Commissioners Court consists of N. R. Link, County Judge, H. C. Wilson, Lavoy Lassiter, B. J. Beard, and W. E. Henry; these individuals also make up the Board of Equalization for Anderson County, Texas.
(10) The rural acreage has been carried upon the tax rolls in the foregoing manner for at least fifteen (15) years during which same period the residential properties have been carried upon the tax rolls at a percentage of its fair market value, which substantially exceeds the percentage the rural acreage has been valued at.
(11) Anderson County, Texas is primarily rural in nature.
(12) An appearance by the Plaintiff before the Board of Equalization to present his complaint would have been futile.
(13) If the present tax rolls are certified and approved, the Plaintiff will pay substantially more taxes than he would were his property rural acreage.
(14) The Defendants, in their official capacities, have perpetuated a scheme which favors taxpayers with rural acreage over taxpayers with residential real property for several years prior to and including the present year.
(15) The manner in which the tax rolls have been prepared results in arbitrary and unconscionable discrimination against taxpayers, including the Plaintiff, whose property consists of real residential properties.

Under the first point of error defendants urge that the trial court erred in granting a permanent injunction because there is no evidence that the proposed plan of taxation would result in substantial injury to the plaintiff. We sustain this point.

The material facts do not appear to be in dispute. The uncontroverted testimony offered at the trial shows that all unimproved land situated in Anderson County had a minimum market value of between $250.00 and $325.00 per acre. The evidence shows that commencing in 1963 the county adopted a plan whereby all unimproved rural land was arbitrarily valued at $48.00 per acre, irrespective of market value. Such unimproved land was then assessed at 25% of the arbitrary value, or $12.00 per acre, and taxes were collected on that basis. Residential or improved property, on the other hand, had been for many years assessed on the basis of its market value. The county then attempted to appraise the residential or improved land at approximately 50% to 60% of its market value and then assess such land at 25% of the appraised value. Thus, the evidence conclusively shows that all of the unimproved rural land was assessed on an arbitrary basis which was substantially below the market value while the improved lands were assessed and taxed on the basis of market value. The record shows that the tax assessor had again assessed all property on that basis for the present year and that the Board of Equalization intended to again adopt such a plan for the ensuing year.

In State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 572 (1954), Justice Calvert said:

“Article VIII, sec. 1 of the Vernon’s Ann.St. Constitution provides that ‘Taxation shall be equal and uniform’ and that all property ‘shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.’ By Article 7174, Revised Civil Statutes, 1925, the legislature has directed that ‘real property shall be valued at its true and full value in money,’ and by Article 7212 has directed boards of equalization to hear evidence touching the ‘market value or true value’ thereof. Our courts have interpreted these provisions to mean that assessed valuations shall be based on ‘the reasonable cash market value’ of property. Rowland v. City of Tyler, Tex.Com.App., 5 S.W.2d 756, 760.”

Unquestionably the evidence offered by the plaintiff shows that the plan or scheme of taxation adopted by the county was arbitrary and illegal. Whelan v. State, 155 Tex. 14, 282 S.W.2d 378, 380 (1955) and the cases cited therein. Defendants do not contend to the contrary.

However, a mere showing of an erroneous and arbitrary plan of taxation does not entitle a taxpayer to injunctive relief. He still has the burden of showing that the proposed plan would result in injury to him. Consequently, we turn to the question of whether plaintiff discharged this burden.

Whether injunctive relief is sought before or after a fundamentally erroneous plan is put into effect, the taxpayer must show substantial injury in order to obtain injunctive relief against such plan. This means that he must show that the plan would discriminate against him by deliberately causing his property to be assessed at a greater percentage of its true value than the percentage assessed for other properties subject to the tax. City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, 417 (1964); Atlantic Richfield Co. v. Warren Independent School Dist., 453 S.W.2d 190, 198 (Tex.Civ.App.-Beaumont 1970, writ ref’d n. r. e.); Lancaster Independent School Dist. v. Pinson, 510 S.W.2d 380, 383 (Tex.Civ.App.-Dallas 1974, writ ref’d n. r. e.).

Where the tax plan is attacked on the ground of inequality of assessment, proof of the actual market value of all of the plaintiff’s property subject to the challenged plan is necessary, since without such proof no discrimination is established. Montgomery County v. Humble Oil & Refining Co., 245 S.W.2d 326, 335 (Tex.Civ. App.-Beaumont 1951, writ ref’d n. r. e.); State v. Whittenburg, supra; Lancaster Independent School Dist. v. Pinson, supra.

In the instant case, plaintiff testified that he owned a house and lot in Anderson County which he used as his residence. According to the testimony offered by the County his residence had a market value of $76,800.00. Plaintiff testified that in addition to his residence, he also owned an undivided interest in other improved property. He further testified that he owned an undivided interest in unimproved property in the County. The record contains no proof whatever showing the market value of his improved property other than his residence, and contains no proof of the market value of his unimproved property.

Plaintiff takes the position that the plan of taxation substantially injures him because the ratio of assessed value to market value of his residence exceeds by at least three times the ratio of assessed value to market value of the unimproved rural property throughout Anderson County. While plaintiff admits that he owns some improved property other than his residence and also admits he owns unimproved rural property, the only evidence of the market value of any of his property is the value of his residence. In order to show that the tax plan was discriminatory as to him, it was incumbent on him to prove the value of all of his property. A taxpayer cannot establish substantial injury by offering proof of the market value of only a portion of his property alleged to be subject to the illegal plan or scheme of taxation. City of Houston v. Baker, 178 S.W. 820 (Tex.Civ.App.-Galveston 1915, writ ref’d); Thompson v. City of Houston, 410 S.W.2d 813, 816 (Tex. Civ.App.-Houston 1967, writ ref’d n. r. e.).

In the absence of any proof of market value of all properties owned by plaintiff alleged to be subject to the illegal plan of taxation, neither the trial court nor this court is in a position to determine whether plaintiff would have been compelled to pay more than his fair share of the tax burden. Consequently there is no basis on which the trial court’s implied finding of substantial injury may be sustained. Thus, we hold that the plaintiff has not carried his burden of proof to show substantial injury.

In view of our holding that substantial injury was not established, we do not reach defendant’s remaining points of error.

Accordingly, the judgment is reversed; the injunction is dissolved, and the cause is dismissed.


source: Caselaw Access Project

author: REYNOLDS, Justice.

license: Public Domain

text:
    KENTUCKY CENTRAL LIFE INSURANCE COMPANY, Appellant, v. Marvin D. FANNIN, Appellee.
    No. 8952.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 30, 1978.
    Rehearing Denied Dec. 27, 1978.

      Brock, Waters & Pigg, Harold H. Pigg, Lubbock, for appellant.
    McClendon & Richards, Tom M. Richards, Lubbock, for appellee.
   REYNOLDS, Justice.

Kentucky Central Life Insurance Company seeks to reverse a judgment imposing liability for the accidental death benefits provided by insurance policies it issued. None of the assertions of error is a valid premise for overturning the jury’s verdict of death by accidental means. Affirmed.

Kentucky Central Life Insurance Company insured the life of Sylvia G. Fannin, whose husband, Marvin D. Fannin, was the named beneficiary. Each of three life insurance policies provided a death benefit of $1,000 with an additional $1,000 in the event that death resulted directly, and independently of all other causes, from accidental bodily injury. A fourth automobile accidental death policy provided a $5,000 benefit for loss of life resulting from bodily injury caused solely by an automobile accident.

Three years later, Sylvia G. Fannin died after the automobile she was driving was wrecked. The insurance company paid the $3,000 death benefits provided in the life insurance policies, but denied the claims for accidental death benefits.

Marvin D. Fannin instituted this action to recover the unpaid death benefits specified in the four policies. The insurance company interposed the policy exclusions. The life insurance policies excluded accidental death benefits (1) if death or injury resulting in death results from intentionally self-inflicted injury or self-inflicted injury while the insured is insane, or intentional self-destruction within two years from the date of policy issue whether sane or insane; or (2) if death or injuries resulting in death is caused or contributed to by disease, or mental or bodily infirmity. The automobile accidental death policy excluded death benefits (1) unless the loss of life results from bodily injury directly and independently of all other causes, and (2) if the loss is caused or contributed to by suicide or self-destruction. The pleading of these exclusions in avoidance of liability placed on Marvin D. Fannin the burden of proof to negate the exclusions before he could recover. Sherman v. Provident American Insurance Company, 421 S.W.2d 652, 654 (Tex.1967).

After hearing the evidence and responding to the three special issues submitted, the jury found that the death of Sylvia G. Fannin: (1) resulted, directly and independently of all other causes, from bodily injury caused by the automobile collision; (2) was the result of an accident; and (3) was not the result of suicide, sane or insane. Accepting the verdict, the trial court rendered judgment decreeing that Marvin D. Fannin recover of and from Kentucky Central Life Insurance Company the sum of $8,000 and the statutory penalty of $960, with interest thereon at the rate of nine percent per annum, plus $2,000 as reasonable attorney’s fees and all costs of suit.

The insurance company has appealed from the judgment, assigning nine points of error. Because the points are focused on the evidential development of the cause, a summary of the evidence, which is not disputed in any material aspect, properly positions the assertions of error.

The Fannins resided in Denver City, Texas. Mr. Fannin is employed as a fishing tool supervisor in the oil fields; Mrs. Fan-nin was employed as a secretary for an electrical business. Mr. Fannin listed Mrs. Fannin’s past illnesses — colds, flu and pneumonia; her past hospitalizations — for child births and a hysterectomy nine years ago; her current condition — being overweight and a little high blood pressure; and characterized her health as “pretty good.” Although Mrs. Fannin sometimes “would . get low as any of us will ... it didn’t last too long,” and she neither took medicine not prescribed by a doctor nor used alcohol regularly. They were not having any problems with their marriage and, during the twenty-one year union, Mrs. Fannin never indicated any propensity toward self-destruction or predisposition to kill one of the children.

Mrs. Fannin had talked with her sister-in-law on the day of and prior to her death. They did not talk of death, but previously they had discussed death. “[W]e,” reported the sister-in-law, “always said if we were going to commit suicide we would get a gun and go right here because too many people don’t die in car wrecks. We have talked about how people have been paralyzed and she [Sylvia G. Fannin] was very much afraid of pain.” It was the sister-in-law’s opinion that Mrs. Fannin loved her family very much, seemed all right and was not insane.

Mrs. Fannin’s husband, daughter and sister-in-law bore witness to her driving habits. To their knowledge, she was a careful driver, had never driven over 80 miles an hour, never failed to stop for a stop sign, and did not receive traffic tickets.

On the day of her death, Mrs. Fannin asked her son, his friend and her unmarried daughter, Linda, to go with her to the grocery store to purchase some bread. The son and his friend declined, but Linda accepted the invitation. Mrs. Fannin, accompanied by Linda, drove her automobile north on Main Street and stopped at a station for gasoline. Rather than proceeding northward toward the grocery store, Mrs. Fannin turned south on Main Street and drove toward the country.

While proceeding south on Main Street, Mrs. Fannin talked with Linda about the rumor, which Mrs. Fannin had discussed with her husband and sister-in-law, that Linda was pregnant by a married man. Linda satisfied her mother that she was not pregnant; her mother was relieved, pleased and was not acting strangely.

Continuing south on Main Street, Mrs. Fannin passed over a dirt road to a “Y” in the road. She turned east on a straight, paved county road which intersected with State Highway 214 at a distance of two or three miles. So far as her husband, daughter and sister-in-law had knowledge, Mrs. Fannin had not been on this county road previously.

Mrs. Fannin and Linda began telling and laughing at jokes. After travelling no more than a mile, Mrs. Fannin gradually accelerated the speed of the automobile. At one point, Linda saw the speedometer indicate a speed of 110 miles an hour. Linda asked her mother to slow down at least once and Mrs. Fannin did so, but she gradually increased the speed and, during the majority of the distance travelled, the automobile was going in excess of 100 miles an hour. Mrs. Fannin laughed continuously, and her laugh was deeper and longer than Linda had ever heard. Linda attributed her mother’s laughter, which was not hysterical, and the acceleration to a joke Linda told. Linda was calm, not scared, and Mrs. Fannin was driving competently as they approached the intersection with State Highway 214. Linda saw no other cars in the vicinity.

A stop sign, located some fifteen feet from the intersection, controls traffic approaching on the county road, and there were no obstructions to prevent its being visible. The sun was up, the day was clear and there was no moisture on the road. There is a dip in the county road just before the intersection is reached.

Linda recalled that Mrs. Fannin’s automobile “kind of ran into the road,” became airborne and landed on the other side of the intersection. If the car had not hit the bump, “We,” Linda said, “would just have gone straight.” As reconstructed by the investigating highway patrolman, the automobile dug into the county road at the dip, went airborne for 158 feet, came down and dug into the pavement, skidded sideways off the roadway for 121 feet, became airborne again and rolled 132 feet and rolled a third time for 108 feet — a total distance of 519 feet.

Linda, injured and dazed, remembered standing by the car in a field and seeing her mother, who had been thrown out of the automobile. The investigating officer found a wrecked automobile to the east of the state highway, and he saw the body of Mrs. Fannin. It was apparent to him from looking at the body what had caused death. “It [the body] was completely demolished,” he said, agreeing that it was “|j]ust broken up all over.” Mr. Fannin went to the scene, saw his wife’s body and was told that she was dead.

The patrolman test-drove the dip. At a speed in excess of thirty-five miles an hour, his car ran into the road at the dip. Based on his experience and investigation, he had no reason to disbelieve the speed Linda reported and, in his opinion, a speed of 100 miles an hour would be an unsafe speed on that road. Both the officer and Mrs. Fan-nin’s sister-in-law concurred that they had driven faster than 100 miles per hour and were not, by doing so, trying to kill themselves; yet, the sister-in-law would have been alarmed, and Mr. Fannin would have some fear for his safety, in approaching the particular intersection at a speed in excess of 100 miles an hour, under which circumstances each agreed it would be reasonable to assume a person likely would be injured. Additionally, Mr. Fannin thought it dangerous to operate an automobile at speeds of 80 to 100 miles per hour, and that at a speed of 90 miles, an hour the probability of an accident was greater than at 50 miles an hour.

This evidential development prompts the insurance company to insist in nine points of error that Marvin D. Fannin failed in his burden to establish an adequate basis in the evidence for either the submission of the three special issues or the findings the jury made thereon. It suffices to state generally, without observing the points seri-atim to record the procedural predicates, that the insurance company asserts there is no evidence to warrant the submission of, and there is factually insufficient evidence to support the jury findings made on, each of the three special issues.

In this connection, an assertion of no evidence has validity only if there is an absence of any evidence of probative force, either direct or circumstantial, to raise an issue submitted, Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725, 728-29 (1930), and no valid presumption operates on the issue. See Farley v. M M Cattle Company, 529 S.W.2d 751, 756 (Tex.1975), for the principle that a true presumption invokes a rule of law which compels the jury to reach a conclusion in the absence of evidence to the contrary. Conversely, the issue must be submitted to the jury when it is raised by any evidence of a probative nature, Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422, 425 (1952), or by an operative presumption. Republic Nat. Life Ins. Co. v. Heyward, 536 S.W.2d 549, 558-59 (Tex.1976).

An assertion of factual insufficiency of the evidence to support a particular jury finding has validity only if, when all of the evidence is considered and weighed, the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In considering and weighing the evidence, due deference must be given to the jury’s prerogative to judge the credibility of the witnesses and the weight to be given their testimony in resolving the conflicts and inconsistencies in the testimony and arriving at the findings it concludes are the most reasonable under the evidence. To this end, the jury is privileged to believe all or part or none of the testimony of any one witness, and to draw reasonable inferences from the facts it found were proved. Kulms v. Jenkins, 557 S.W.2d 149, 153 (Tex.Civ.App.—Amarillo 1977, writ ref’d n. r. e.).

The insurance company first asserts the lack of the required evidential showing that the death of Sylvia G. Fannin was the result of an accident. The crux of the assertion is that she was intentionally and voluntarily operating her automobile on a county road at a speed in excess of 100 miles per hour approaching an intersection with a state highway; therefore, it is inconceivable that she could so operate her automobile and not reasonably anticipate that she could receive injuries which would lead to her death. This leads the insurance company to a conclusion that, definitionally, because her acts did not produce something unforeseen, unexpected and unusual, her death was not accidental.

The principle upon which the conclusion rests has been sundrily expressed. Injuries which result in death are “accidental” within the meaning of the policies here, according to the latest expression of our Supreme Court found in Republic Nat. Life Ins. Co. v. Heyward, supra, at 557,

. if, from the viewpoint of the insured, the injuries are not the natural and probable consequence of the action or occurrence which produced the injury; or in other words, if the injury could not reasonably be anticipated by insured, or would not ordinarily follow from the action or occurrence which caused the injury-

Consistent with this expression, it is, despite the insurance company’s argument to the contrary, immaterial what the witnesses, speaking after the fait accompli, could reasonably anticipate would be the probable consequence of Mrs. Fannin’s operation of her automobile in the manner described; the controlling viewpoint is that of Mrs. Fannin at the time of her action. Thus, the propriety of the inquiry whether, and the finding that, the death of Mrs. Fannin was the result of an accident depend upon, respectively, the legal and factual sufficiency of the evidence to raise and to show that, from Mrs. Fannin’s viewpoint, her conduct was not such as to cause her to reasonably believe that it would result in injuries producing death.

As mentioned, the insurance company emphasizes that Mrs. Fannin’s uncharacteristic rate of speed and failure to stop at the intersection stop sign establishes that she reasonably anticipated she could receive injuries which would lead to her death. The assertion disregards two present factors. First, there is a presumption, based upon the recognized instinct of self-preservation, that Mrs. Fannin did not voluntarily bring the danger upon herself. American Nat. Ins. Co. v. Fox, 184 S.W.2d 937, 943 (Tex.Civ.App.—Fort Worth 1944, writ ref’d w. o. m.). Second, there is nothing in the act of driving at an excessive rate of speed and failing to stop at a stop sign, though both be violations of the law, which per se is calculated to produce bodily injury or death to the driver. Under some circumstances, either excessive speed or a failure to stop may result in injury or death, but it cannot be logically said that death is the natural consequence of either act. Indeed, the testimony of the patrolman and the sister-in-law is to the effect that neither injury nor death is the natural consequence of driving a motor vehicle at speeds in excess of 100 miles an hour.

Apart from that, there is testimony that Mrs. Fannin was pleased and relieved that her unmarried daughter was not pregnant and that a joke brought about her hilarity and the accelerated speed. Although the testimony is that Mrs. Fannin previously had not travelled the county road, the road was straight and paved and the intersection, though controlled, was free of traffic. According to Linda, Mrs. Fannin was driving competently and, except for encountering the dip in the county road, the automobile would have gone through the intersection. However, the dip was encountered, the automobile was wrecked and Mrs. Fan-nin died. This is some evidence of probative force for the submission of the special issue.

Given this and the related testimony, the jury could believe that Mrs. Fannin operated her automobile as she did in a carefree state of exhileration and reasonably infer that, in her view, she did not intend to cause any injury. The jury was entitled to believe that Mrs. Fannin had not previously travelled the road and to also reasonably infer that, although Mrs. Fannin may have been voluntarily exposing herself to some danger in driving at a high rate of speed, the dip in the road was unknown to her and she could not reasonably anticipate the unexpected danger the dip represented. Further, the jury could make the reasonable inference that, from Mrs. Fannin’s viewpoint, encountering the dip was, under the court’s charge, something unforeseen, unexpected and unusual which produced the accident from which her death resulted. With due deference to the jury’s prerogative, we cannot say that the evidence supporting the jury’s finding is so weak or the contrary evidence so overwhelming that the finding should be set aside.

A finding of death by accidental means under more extended circumstances was upheld in Metropolitan Life Insurance Co. v. Henkel, 234 F.2d 69 (4th Cir. 1956). There, the insured, fleeing in an automobile from officers at a reckless and unlawful rate of speed of 90 miles an hour or more, unexpectedly came to a fork in an unfamiliar road, and the car ran onto the soft shoulder and overturned, inflicting injuries from which he died. The court said that the overturning of the car as a result of the unexpected coming upon the fork in the road and the consequent running onto the soft shoulder was something unforeseen, unexpected and unusual which produced the injury.

Next considered is the insurance company’s assertion that there was a failure to discharge the burden to show that Sylvia G. Fannin’s death resulted directly, and independently of all other causes, from bodily injuries received in an automobile collision. The thrust of the argument is that because the cause of death was not established by a death certificate or by medical testimony, there is no competent evidence of the true cause of death.

The assertion is, in essence, that the cause of Mrs. Fannin’s death was not established by direct evidence; however, the true cause of death, like any other fact, may be established by circumstantial evidence. Commonwealth Casualty & Ins. Co. v. Laurence, 223 S.W.2d 337, 338 (Tex.Civ.App.—Fort Worth 1949, no writ); Universal Life & Accident Ins. Co. v. Beaty, 177 S.W.2d 244, 245 (Tex.Civ.App.—Waco 1944, no writ). There is testimony that Mrs. Fan-nin was alive and laughing at the time the automobile she was driving encountered the dip in the road and was wrecked; immediately afterwards, she was dead, her body broken up and demolished. There is also testimony that Mrs. Fannin had suffered illnesses and was overweight with high blood pressure; but the lay witnesses who had observed her were competent to testify, as they did, that her health was good and she seemed all right, Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943, 945 (1944), and if her condition did not materially contribute to her death, recovery under the policies is not prevented by reason of her bodily condition. Mutual Benefit Health & Accident Ass'n v. Hudman, 398 S.W.2d 110, 114 (Tex.1965).

The testimonial facts leading to and surrounding Mrs. Fannin’s death authorized the submission of the issue inquiring if her death resulted directly, and independently of all other causes, from bodily injuries received in an automobile collision. From these facts, the jury could reasonably conclude that Mrs. Fannin’s condition did not materially contribute to her death and that it resulted directly, and independently of all other causes, from bodily injuries received in the automobile accident. After considering and weighing all of the evidence we are not able to say that the evidence supporting the jury’s finding is so weak or that the contrary evidence is so overwhelming that the finding should be set aside.

Last addressed is the assertion that Mr. Fannin failed to carry his burden on the suicide issue. The negative of suicide, which was injected by interposing that exclusion rather than pleading suicide as an affirmative defense, was an element of Mr. Fannin’s cause of action to show that Mrs. Fannin’s death was accidental. Combined American Insurance Company v. Blanton, 163 Tex. 225, 353 S.W.2d 847, 849 (1962).

The evidence of Mrs. Fannin’s death by violent and external means raises a presumption that she did not commit suicide, for the law assumes that her natural instinct was to avoid injury and preserve her own life. However, this presumption, which neither constitutes evidence in itself nor shifts the burden of proof, raises an issue of the fact, and compels the jury to find, that her death was not a suicide until and unless evidence to the contrary is introduced. See and compare Republic Nat. Life Ins. Co. v. Heyward, supra, at 558-59 and Farley v. M M Cattle Company, supra, at 756.

The insurance company argues that the undisputed acts of .Mrs. Fannin in driving her automobile at 110 miles per hour and disregarding the stop sign intentionally and of her own volition rebuts the presumption and precludes a finding that she did not take her own life. We are not persuaded that those acts in themselves rebut the presumption against suicide arising under this record which, except for the two acts singled out by the insurance company, demonstrates that Mrs. Fannin was normal and without a suicidal intent. Even assuming arguendo that these acts rebutted the presumption, the true issue does not then become, as the insurance company proposes, whether Mrs. Fannin’s driving actions were intentional. That test was rejected in American Casualty & Life Co. v. McCracken, 173 S.W.2d 212, 213 (Tex.Civ.App.—Eastland 1943, writ ref’d). Moreover, that proposal, if followed to its logical conclusion, illogically brands as a suicide any driver’s death resulting from an accident involving his intentionally driven automobile, irrespective of the circumstances. The true test would be whether the happening which produced the accident — i. e., encountering the dip — was intentionally or accidentally encountered. The jury has answered that issue by finding that Mrs. Fannin’s death resulted from an accident, and the answer has withstood the attack made on it.

In upholding the verdict returned by the jury, we recognize it is arguable that the jury might have reached different findings from the evidence and inferences deducible therefrom; but that would not justify the setting aside of those findings of fact the jury concluded were the most reasonable under the evidence, for our jurisdiction has found no better way of establishing facts than through the findings of a jury made on sufficient evidence. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 790-97 (1951). Accordingly, the insurance company’s nine points of error are overruled.

The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    Brooks HOLT, City Secretary of the City of Denton, Texas, Appellant, v. William E. TRANTHAM et al., Appellees.
    No. 18116.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 30, 1978.
    Rehearing Denied Jan. 11, 1979.

      Paul C. Isham, Denton, for appellant.
    William E. Trantham, Denton, for appel-lees.
   OPINION

MASSEY, Chief Justice.

By our opinion in this case we affirm the Order Granting Writ of Mandamus. Respondent Brooks Holt, as City Secretary for the City of Denton, Texas, was ordered to present the “Recall Petition” of the petitioners and his Certificate as to its Sufficiency to the City Council at its next regular meeting.

The petitioners who obtained the foregoing relief were qualified electors for the purposes involved.

The issue before the trial court was upon the question of propriety of the character of the petition as a prescribed procedural step essential to constitute the foundation for holding a recall election. Petitioners desired to have voted upon the question of whether three councilmen of the City of Denton should be removed.

The trial court held that the petition, as amended, was a sufficient compliance with the provisions of the City Charter.

The applicable rules of law by which there should be test of the electors’ petition are directory rather than mandatory. (The contrary rule would apply under provisions of the election laws governing what is required of candidates in elections). Tex. Const, art. VI, “Suffrage”, and the sections thereunder, particularly § 2, “Qualified elector; . . . ” (1966 amendments); Geiger v. DeBusk, 534 S.W.2d 437 (Tex.Civ.App.—Dallas 1976, no writ history).

It was by provisions of the City Charter that the City Secretary ruled the petition insufficient, thus creating the situation leading to mandamus. In material part the City Charter provides, viz:

Sec. 4.11. “Recall of councilmen”. Any member of the city council may be removed from office by a recall election. Sec. 4.12. “Recall petition, committee of petitioners.” Recall petition papers shall contain the name of the councilman (or names of the councilmen) whose removal is sought, and a clear and concise statement of the grounds for his (or their) removal. . . . The signatures to a recall petition need not all be appended to one paper, but to each separate petition there shall be attached an affidavit of the circulator thereof that he, and he only, personally circulated the foregoing paper, that it bears a stated number of signatures, that all signatures were appended thereto in his presence and that he believes them to be the genuine signatures of the persons whose names they purport to be.
Sec. 4.13. “Filing and certification of petitions, recall election.” (a) All papers comprising a recall petition shall be assembled and filed with the city secretary as one instrument. Within seven (7) days after a petition is filed the city secretary shall determine whether each paper bears the names of the five (5) electors who constitute the committee of the petitioners, and the required affidavit of the circulator thereof, and whether the petition is signed by qualified electors (measure as applied to determining sufficiency as to numbers also prescribed)
(b) If the city secretary finds the petition insufficient he shall return it to the committee of the petitioners, without prejudice, however, to the filing of a new petition based upon new and different grounds, but not upon the same grounds. . (Following are provisions in the event the petition be deemed sufficient.) (e) [C]ity council shall thereupon order and fix a date for holding a recall election . . ..

As originally presented to the City Secretary the many pages constituting the recall petition contained information prescribed as required, along with lines for signature and addresses with dates of signing, plus completed certificate at the bottom of each of the pages in the following form:

I,_, certify that I, and only I, personally circulated the foregoing petition, that it bears_signatures that were appended hereto in my presence and I believe that they are the signatures of the persons whose name they purport to be. Signed the _ day of _, 1978.

The City Secretary kept the petition papers overnight and then delivered them back, returning the same to the petitioners’ committee. The committeemen caused those who had circulated the petition together to make affidavits relative thereto. Pursuant thereto the “circulators” made oath before Notaries Public in the following form:

“STATE OF TEXAS
COUNTY OF DENTON
“BEFORE ME, the undersigned authority, personally appeared those persons whose names are listed below, who, each being duly sworn by me deposes and says:
“I personally circulated the recall petition page to which my signature is signed; that each person who signed the page did so in my presence; that I believe such signatures as appear thereon are the genuine signatures of the person whose name they purport to be, and; that each is a registered voter of the city of Denton, Texas.”
(Here follows many lines, on each of which a signature of a circulator of the petition appears.)
“SWORN TO AND SUBSCRIBED TO Before me by each one individually.” (Followed by hand and seal of Notary Public.)

Promptly the identical papers comprising the formerly tendered recall petition, plus the pages on which there was oath by the circulators before a Notary Public, (constituting affidavit by each of them), were tendered (or re-tendered) to the City Secretary. He refused to accept and act. He returned such amended petition to the committee of the petitioners. One of his reasons for returning the amended petition was because the grounds were identical to the grounds stated in the petition as initially presented. It was his opinion that there was not a compliance with requirement that such petition should have been upon different grounds from those stated.

Between the time the “bundle of papers” constituting the recall petition was first delivered to the City Secretary and the time of the tender of practically the same “bundle” as an amended petition, the mandamus suit was filed. There was amendment of the electors’ pleadings in their petition for mandamus following the later tender. Since there is no point of error predicated upon the manner of the proceedings in the trial court we disregard any irregularities..

On trial it was in the capacity of electors that several witnesses who had signed the recall petition testified. Uncontested evidence showed the fact that signers of the recall petition were in sufficient number and were qualified electors who had signed with the purpose and intention of obtaining the certification of the petitions they had signed by the City Secretary, to the City Council, so that an election would be called.

What was done by the electors, apart from the propriety of the procedure by which done in aid of their purpose by those who circulated the petition and by those who were the “committee”, was to obtain and exercise their rights of suffrage; to obtain the opportunity to participate in an election in which their rights to vote might be exercised.

Where a statute, or the provisions of some municipal charter, authorizes the holding of an election only on the taking of a prescribed step, this prescribed step constitutes the foundation for holding the election, not the election itself. Such action relating to steps to be taken prior to an election are directory where authority to hold the election is otherwise conferred upon those who are to order or conduct it. 29 C.J.S. p. 161 “Elections” § 70, “Order or Call”, (1965). Whatever action or non-action there might be there may be reconsideration of its propriety in a suit in complaint thereof brought in the appropriate trial court.

Upon the presentation of a proper petition made a condition precedent, the authorities appointed to call an election on a particular measure or proposition have no discretion to refuse to call it. This rule likewise has application to and includes a middle-man whose official duty is to make the examination and determination of the sufficiency of the petitioners’ compliance with conditions precedent. 29 C.J.S. p. 159 “Elections” § 68, “Preparatory Steps in General” § 69, “Petition of Electors” (1965).

In the determination of the compliance or non-compliance with the conditions precedent the test may require the consideration of the “reasonableness” of the provisions relating to qualification of a petition as sufficient. To make such a judgment was part of the duty of the City Secretary in the instant case. To be valid a registry law or ordinance must be reasonable, neither impairing the right of suffrage guaranteed by the constitution nor depriving a person of his right where there is no fault or negligence on his part.

Most cases in which there have been expressions upon applicable law are those where after the fact of an election there has been attack upon election propriety rather than cases where there was refusal to hold elections and where, as on the instant appeal, there were mandamus petitions filed to have elective processes compelled. The electors who petitioned for mandamus in the instant case cite the case of Bagley v. Holt, 430 S.W.2d 817, 821 (Tex. Civ.App. — Texarkana 1968, writ ref’d n.r. e.), and language therefrom as follows:

“Courts long ago settled the question, differing only in the phraseology used, by holding that whatever the law requires a voter to do himself he must do as required in order to cast a valid ballot; but that failure on the part of election officers to perform their duties prescribed by law, where such failure has not prevented a fair election, will not deprive the elector of his voting privilege or of his right to exercise it. (Citing cases.) The elector in this instance, burdened as he was by illiteracy, did all that the law required of him. Misunderstanding of the election judge’s duties and failure on the part of that election official to observe the law’s precepts, did not render the elector’s ballot invalid.”

Analogous legal principles would be effective where the proceeding is for mandamus to compel the holding of an election and the performance of duties ancillary thereto where the respondent occupies the position of an officer in some way connected with and charged with a duty relative to the election. Where, as a prerequisite to the holding of the recall election where by law there must be performance of authoritatively prescribed duties by the City Secretary he should not escape his obligation of performance where there has been substantial compliance with the law by the electors.

It is not the provisions of the Den-ton City Charter are unconstitutional on its face, rather it is that the provisions are unconstitutional in their application to the factual situation here posed, i. e., to the manner of preparation and presentation of the electors’ petition to the City Secretary. To hold otherwise would be to impair the right of suffrage by the electors where there has been no fault or negligence on their part.

We agree with the City Secretary that the trial court erred in concluding that because the City Attorney of the City of Denton had approved the form of the recall petition prior to its circulation and submission the City Secretary was estopped to deny its sufficiency. However, the fact that the point of error relative thereto could be sustained would in no way affect our obligation to affirm the judgment.

It is obvious that the trial court should fix the date and time of the election anew when there is finality of the judgment after exhaustion of the appeal. The trial court is authorized so to do.

Affirmed.


author: DODSON, Justice.

text:
    GULF INSURANCE COMPANY, Appellant, v. Elvia ADAME, Appellee.
    No. 8947.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 30, 1978.
    William A. Clifford, Lubbock, for appellant.
    Mark Smith & Associates, Mark Smith, Lubbock, for appellee.
   DODSON, Justice.

Appellant Gulf Insurance Company attempts to appeal from an order of the trial court granting the parties a new trial. Appellant maintains that the trial court lacked jurisdiction to grant a new trial. We determine that the trial court had plenary power to grant a new trial and that an appeal does not lie from this interlocutory order. Accordingly, the appeal is dismissed.

Ms. Adame brought this action under the Workmen’s Compensation Act seeking damages for alleged incapacity resulting from an injury sustained in the course of her employment. Judgment based on the jury verdict in favor of Ms. Adame was rendered on 21 November 1977.

On 1 December 1977 appellant timely filed its motion for a new trial. This motion was overruled by operation of law on 16 January 1978. Tex.R.Civ.P. 329b(1), (4). Ms. Adame’s motion for new trial was not timely filed. Tex.R.Civ.P. 329b(l).

On 26 January 1978 the trial court entered its order granting a new trial. The order recited that the new trial was being granted upon the court’s “own motion and consideration” and “in the interest of justice to each of the parties.” This order was entered within 30 days after appellant’s motion for new trial was overruled by operation of law. Thus, the trial court had plenary power to reverse, modify or vacate the judgment at any time before it became final. Tex.R.Civ.P. 329b(5); Mathes v. Kelton, 569 S.W.2d 876, 878 (Tex.1978); Herrera v. Talbert, 316 S.W.2d 952, 954 (Tex.Civ.App.—San Antonio 1958, no writ). Furthermore, the trial court may exercise this power “without the necessity of a formal written or oral motion by a party, or for reasons not incorporated in a motion duly filed.” 4 R. McDonald, Texas Civil Practice § 18.03 (1971) and authorities cited therein.

We conclude that the order entered by the trial court is an interlocutory order. It is not a final judgment, and therefore no appeal will lie. We are without power to review it. Therefore, no other questions raised by the parties can be considered. Lynn v. Hanna, 116 Tex. 652, 296 S.W. 280 (1927).

Appeal dismissed.

      . The 45th day fell on a Sunday. Therefore, the time was extended to include the 16th day of January. See Longview Transit Co. v. Ferchill, 312 S.W.2d 407 (Tex.Civ.App.—Texarkana 1958, no writ).


author: J. CURTISS BROWN, Chief Justice.

text:
    Van Royce VIBBER, Appellant, v. UNAUTHORIZED PRACTICE COMMITTEE of the State of Texas.
    No. 1885.
    Court of Civil Appeals of Texas. Houston. (14th Dist.).
    Dec. 6, 1978.
    Rehearing Denied Jan. 10, 1979.
    Gerald P. Burleson, Burleson & Svetlik, Houston, for appellant.
    John A. Graml, Réynolds & Graml, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

Appellant was temporarily enjoined from pursuing certain acts constituting the unauthorized practice of law. He appeals on the sole ground that the trial court failed to require appellee to give a bond for damages.

Van Royce Vibber, appellant, although not an attorney, operated Divorce Services of Texas, an organization to provide petitions, waivers of citation, and drafts of divorce decrees to couples seeking a no-fault divorce. The Unauthorized Practice Committee of the State Bar of Texas, ap-pellee, brought an action seeking a permanent injunction to stop such practice and further sought a temporary injunction pending the outcome of the litigation. The trial court granted the temporary injunction, but did not require appellee to post bond to secure appellant against losses, if any, in the event that the temporary injunction was wrongfully granted. Appellant does not contest the grounds for granting the injunction, as his only point of error is that the trial court erred in issuing the temporary injunction without requiring bond.

Tex.R.Civ.P. 684, requiring a court issuing a temporary injunction to fix the amount of security to be given by the applicant, has been construed to be mandatory in requiring a bond, and lack of a bond renders a temporary injunction void ab initio. Goodwin v. Goodwin, 456 S.W.2d 885 (Tex.1970).

Conversely, if some statute or rule exempts the party seeking the injunction from posting bond, the temporary injunction would be valid without bond. In this instance the trial court found that no bond was required because appellee, as a state department, was exempted from posting bond by Tex.Rev.Civ.Stat.Ann. art. 279a (1973). Article 279a provides in relevant part that

[njeither the state . . . nor any county . . . nor any state department . . . shall be required to give any bond incident to any suit filed by such agency, official and/or entity, for costs of court or for any appeal or writ of error . . . nor any surety for the issuance of any bond for the taking out of writs of attachment, sequestration, distress warrants, or writs of garnishment in any civil suit.

On its face article 279a does not exempt a state department, such as the appellee, from giving bond to secure against damages in an action seeking a temporary injunction. However, there is authority concluding that the intent of the legislature in enacting article 279a was to exempt a state department from giving bond before obtaining a temporary injunction. West v. Ellis County, 241 S.W.2d 344 (Tex.Civ.App.—Waco 1951, no writ). The court, after finding that the statute itself did not exempt a county from giving bond in securing a temporary injunction, examined the caption of the article as it appeared in the session laws. That caption describes the article as “[a]n act exempting the State of Texas, any county in the State, any State Department or the head of any State Department . . . from giving security for costs or the posting of bond or bonds in securing any extraordinary writs . . .” Tex.Laws 1935, ch. 283, at 670. From reading the caption, the court reasoned that the legislature intended to include all extraordinary writs within the purview of article 279a. We follow West and conclude that the trial court correctly exempted the ap-pellee, as a state agency, from posting bond to secure against damages.

Affirmed.


author: CIRE, Justice.

text:
    GREENWAY PARK TOWNHOMES CONDOMINIUM ASSOCIATION, INC., Appellant, v. BROOKFIELD MUNICIPAL UTILITY DISTRICT, Appellee.
    No. 1903.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 6, 1978.
    John B. Geddie, Houston, for appellant.
    Robert M. Collie, Jr., City Atty., James L. Dougherty, Jr., Asst. City Atty., Houston, for appellee.
   CIRE, Justice.

Greenway Park Townhomes Condominium Association [the Association] appeals from a summary judgment rendered in favor of Brookfield Municipal Utility District [the District] on a contract executed between Brookfield and Young Homes, Inc. Appellant is claiming the right to sue on the contract as a third party beneficiary.

Appellee District was a corporate and governmental agency of the State of Texas until it was annexed by the City of Houston on March 29, 1978. On July 17, 1973, the District entered into a contract with Young Homes, Inc., a land developer, to provide water and sewer service to a tract of land being developed outside the boundaries of the Utility District. The contract provided for a rate equal to one and one-half times that charged for services within the District’s boundaries. In 1974 Young Homes fell into arrears in payments owed the District, and shortly thereafter was foreclosed upon by Gibraltar Savings Association. Subsequently water service to the tract was disconnected.

Sometime after the foreclosure Gibraltar and the Utility District entered into negotiations to reestablish water service to the tract. No formal contract was executed, but service was resumed at a rate two and one-half times that paid by similar customers located within the District’s boundaries.

On December 30, 1974, after service was reestablished, appellant Greenway Park Townhomes was incorporated. The members of the Association were the fee owners of the townhouses. Gibralter was the original seller of all the townhouses.

Appellant instituted this suit in February of 1977 alleging that the District was charging rates in excess of those stated in the contract with Young Homes and had breached the contract in failing to supervise construction of the sewer system. Appellant claimed to be a third party beneficiary of the contract between Young Homes and the Utility District. The language in the contract upon which appellant relied for this claim was as follows:

To further such development, the Corporation [Young Homes] desires to obtain a secure and continuous supply of potable water for the future water users in the Tract and is further desirous of providing for the continuous treatment of domestic waste collected from the Tract. (Emphasis supplied).

The contract further provided:

District [Defendant] has determined that it has sufficient capacity in its treatment facilities and sufficient surplus water produced by its waterworks system to serve the future users in the Tract as is hereinafter provided. (Emphasis supplied).

The trial court found no material issues of fact and rendered a summary judgment for the Utility District.

We hold that appellant as a matter of law is not a third party beneficiary of the original contract between Young Homes and the Water District and therefore affirm the judgment of the trial court.

Parties are presumed to contract for their own benefit, and it is not to be assumed that they intended to benefit a third party unless this intent is clearly apparent. Any doubt should be resolved against such intent. Republic National Bank of Dallas v. National Bankers Life Insurance Co., 427 S.W.2d 76 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.).

The contract contained the following language:

[T]he Corporation [Young Homes] may assign this contract to a Homeowners’ Improvement Association upon receiving the District’s written consent and after such assignment, the Corporation shall no longer be responsible for the payment of bills due for services provided by the District.

By this clause the parties anticipated that a home owners association might in the future come into existence and acquire Young’s rights and duties under the contract. They provided that the benefits under the contract could be extended to such an association by means of an express assignment. This assignment provision is inconsistent with the contention that the parties intended the Association to be a third party beneficiary, and would be rendered meaningless by such a construction. It is assumed that the parties to a contract intend every clause therein to be effective. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.Sup.1968).

Further, there is evidence that the original contract between the District and Young Homes was rescinded by tacit mutual agreement of the parties prior to the time appellant Association came into existence. Rescission of a contract need not be by formal agreement, but may be implied from the course of conduct of the parties indicating an understanding that the contract is terminated. Marsh v. Orville Carr Associates, 433 S.W.2d 928, 931 (Tex.Civ.App.—San Antonio 1968, writ ref’d n. r. e.). Here, Young Homes defaulted in three months’ payments and was foreclosed upon. The District ceased providing service to the tract and subsequently entered into a new arrangement with Gibraltar. This indicated a mutual understanding that the original contract was terminated. Further, this occurred prior to the time the Association came into existence. As a result appellant could not have accepted or relied upon the contract before it was terminated by mutual rescission of the contracting parties, and cannot enforce it now. Breaux v. Banker, 107 S.W.2d 382 (Tex.Civ.App.—Beaumont 1937, reversed on other grounds, 133 Tex. 183, 128 S.W.2d 23 (1939)).

Since appellant was not entitled as a third party beneficiary to sue on the contract between the District and Young Homes there was no error in granting summary judgment.

Affirmed.


author: BISSETT, Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Napoleon M. GRIFFITH, Appellee.
    No. 1333.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 7, 1978.
    Rehearing Denied Dec. 29, 1978.

      James M. Shatto, Gen. Atty. and Alex Guevara, Jr., Houston, Leland B. Kee, An-gleton, for appellant.
    Ernest H. Cannon, John M. O’Quinn, Riddle, Murphrey, O’Quinn & Cannon, Houston, Bert L. Huebner, Bay City, for appellee.
   OPINION

BISSETT, Justice.

In this products liability case involving a one-vehicle accident allegedly caused by a negligently and defectively installed mobile telephone unit, Southwestern Bell Telephone Company, appeals from a judgment rendered by the District Court of Matagor-da County, Texas, in favor of Napoleon Griffith. Trial was to the court, sitting without a jury. Findings of fact and conclusions of law were filed. The parties will be referred to as “plaintiff” and “defendant,” as they were in the trial court.

Defendant does not question the award of $420,371.68 as damages. It makes several distinct attacks on several rulings made by the trial court. It asserts that the trial court abused its discretion in refusing to grant it a continuance. It claims that several findings of fact are not supported by any evidence, or, in the alternative, that such findings are against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. It complains that the trial court erred in failing to make certain requested findings of fact. It contends that the judgment rendered by the trial court is void because of improper rendition and entry. Twenty-three points of error, several of which contain numerous subsections, are brought forward in this appeal.

Defendant contends in its 22nd point that the judgment is void because: 1) it was not pronounced in open court; 2) it was not rendered in open court; and 3) it was signed by the trial judge outside of Mata-gorda County, Texas. The point cannot be sustained.

The judgment of a court is what the court pronounces; it is rendered whenever the trial court orally announces its decision in open court, or signifies out of court to the clerk of the court, in his official capacity, either orally or in writing, its decision of the law upon the matters at issue. Comet Aluminum Company v. Dibrell, 450 S.W.2d 56 (Tex.Sup.1970); Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912). A judgment regular on its face is presumed to be properly “pronounced” and “rendered.” Texas Life Insurance Co. v. Texas Building Co., 307 S.W.2d 149 (Tex.Civ.App.—Fort Worth 1957, no writ).

In the case at bar, the judgment is valid on its face. The docket entry relating to its “pronouncement” and “rendition” was made on July 28, 1977, and reads:

“Plaintiff awarded $407,000.00 plus all ■ medical, hospital and drug bills admitted into evidence as per judgment to be filed.”

The judgment was signed on October 10, 1977.

Defendant’s amended motion for new trial was heard on December 7, 1977. Defendant’s counsel was present at the hearing, and on that date, filed with the clerk a handwritten motion, wherein the trial court was requested to receive:

“Evidence as to circumstances surrounding time, place and circumstances under which Court’s docket entry of July 28, 1977 was made.”

A court reporter was not present at the time and there is nothing to indicate that counsel for defendant requested a court reporter to be present and to make a record of the proceedings had on December 7, 1977. There is no showing that any evidence was introduced at the hearing.

On February 6, 1978, which was long after the amended motion for new trial was overruled, Mr. Leland B. Kee, leading counsel for defendant at the trial of the case, filed an Affidavit with the District Clerk of Matagorda County, Texas. It is included in the transcript, which was filed in this Court on February 16, 1978. The affiant stated therein that the docket entry of July 28, 1977, was not made in open court, and at the hearing on defendant’s amended motion for new trial, which was held December 7, 1977, he presented his handwritten motion to the judge, but that he (counsel for defendant) was not permitted to introduce evidence thereon. A supplemental transcript was filed on March 3, 1978; included therein is a “Bill of Exception” signed by the trial judge on February 27, 1978. The judge stated therein:

“On July 28, 1977, I went to Bay City, Texas, where the docket sheet was on file with the District Clerk. On that date, I announced, pronounced, rendered and made my decision and judgment in this case and recorded it on the docket sheet in open court in Bay City, Matagorda County, Texas.”

The judge also said:

“This judgment was signed in open court on October 10, 1977, and counsel for both parties, including Mr. Kee, were so informed.”

The “Affidavit” and the “Bill of Exception” are not properly part of the appellate record before us. We do not consider either of them in disposing of defendant’s point. Even if we were to consider them, all they show is a dispute between judge and counsel as to what actually took place at the time in question. Defendant’s counsel was not present in the courtroom in Matagorda County, Texas, at any time on July 28,1977. The judge said that he (the judge) was present. Under the circumstances, we are not required to decide the issue.

In order to prevail, the burden was on defendant to bring this Court a proper record of the occurrences in the trial court which shows that the judgment was void. Defendant did not meet that burden. Fundamental error is not apparent on the face of the record. There is no evidence in the record that the handwritten motion was ever called to the attention of the trial judge. Nothing is presented for appellate review. See Birge v. Toppers Menswear, Inc., 473 S.W.2d 79 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.); Smith v. Davis, 453 S.W.2d 340 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.). Point 22 is overruled.

Defendant, in point 23, contends that the trial court erred in refusing to grant its motions for continuance. Two motions were presented to the trial court during the morning of July 18, 1978, the date of trial. Both were denied. The first motion was in writing, and was sworn to by defendant’s attorney. Two grounds were asserted therein. First, it was asserted that plaintiff had violated the provisions in an order made by the court on June 28,1977, whereby plaintiff was directed to answer certain questions previously asked him on deposition; that such answers “are a sham and a farce,” and are “unresponsive to the questions propounded” to plaintiff on deposition; and, consequently, defendant “cannot safely proceed to trial” until such time as plaintiff answers the questions. Second, plaintiff’s first amended original petition, which was filed on July 8, 1977, alleged “an entirely new and different cause of action from that attempted to be alleged in Plaintiff’s Original Petition”; as a result of the allegations made therein, “defendant cannot safely proceed to trial against these allegations without a reasonable amount of time to investigate these allegations and prepare its defenses thereto.”

The law is well settled that the trial court’s denial of a motion for a continuance is within the sound discretion of the trial court and it will be presumed, absent a showing of an abuse of discretion, that the court properly exercised its discretion. Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.Sup.1963).

With respect to the first ground, plaintiff refused to answer certain questions when his deposition was taken on March 6, 1976. It was not until June 21, 1977, some 15 months later, that defendant filed a motion to compel plaintiff to answer those questions. An order to that effect, signed on June 28, 1977, directed plaintiff to do so “within ten days” from the date the order was signed. Plaintiff filed his answers on July 11, 1977. Defendant did not contest those answers by formal objections or exceptions. It did, however, allege in the motion for continuance that it could not properly prepare its defense to the action until such time that plaintiff did answer the questions. The record shows that plaintiff did answer the questions, but defendant was not satisfied by those answers.

Insofar as the second ground is concerned, defendant filed special exceptions on the day of trial to plaintiff’s first amended original petition. The contentions set forth in the special exceptions were substantially the same contentions set forth in the written motion for a continuance. The court overruled all but one of them, conditioned, however, that plaintiff would, by a trial amendment, meet Special Exception No. 2, wherein it was alleged that a portion of the petition failed “to contain a concise statement of how the installation of the telephone unit interfered with the operation of the vehicle in which it was installed and thus fails to give Defendant fair notice of the claim involved.” Plaintiff filed such a trial amendment. Defendant does not challenge the overruling of its special exception or the filing of the trial amendment, as such, by specific points of error directed toward the court’s action. It does assert that the trial court erred in refusing to grant its motion for a continuance for the reason that permitting plaintiff to file the trial amendment effectively deprived it of time to prepare its defense to the matters raised by the amended pleading.

Matters of discovery are by their very nature pretrial devices designed to expedite and narrow the issues to be determined by a trial on the merits. The means of discovery should be utilized in a timely manner and should not be delayed until just before trial. Here, defendant waited 15 months after it was aware of the difficulties presented by plaintiff’s refusal to answer certain questions, and did nothing to force plaintiff’s hand until less than a month before the trial was scheduled to begin. The answers were filed on July 11, 1978, some seven days before the day this case was set for trial. Defendant did not challenge those answers in any way until the day of trial. We have read both the questions asked on deposition and the answers, and, in our opinion, the answers do not fall into the categories contended by defendant.

We have compared the allegations made by plaintiff in his original petition with those made by him in his first amended original petition. We have carefully considered the exceptions leveled by defendant at the allegations made in the original petition. We do not believe that defendant was deprived of time to prepare and assert a proper defense to the matters alleged in the amended petition; the allegations therein did not set up a new cause of action but merely elaborated on the facts previously alleged. The trial amendment cured the alleged defect asserted by defendant in its Special Exception No. 2.

The second motion was oral, and, of course, was not sworn to by either an officer of the defendant corporation, or by its attorney. Rule 251, T.R.C.P., in pertinent part, provides:

“No application for a continuance shall be granted except for sufficient cause supported by affidavit . . .”

There was no compliance with the requirement set out in the rule. In that state of the record, there was no error or an abuse of discretion in denying such motion. City of Wichita Falls v. Lipscomb, 50 S.W.2d 867, (Tex.Civ.App.—Fort Worth 1932, writ ref’d); Watson v. Godwin, 425 S.W.2d 424 (Tex.Civ.App.—Amarillo 1968, writ ref’d n. r. e.); Smith v. Crockett Production Credit Association, 372 S.W.2d 956 (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.); Major v. Lord, 357 S.W.2d 820 (Tex.Civ.App.—Waco 1962, writ ref’d n. r. e.); Coleman v. Banks, 349 S.W.2d 737 (Tex.Civ.App.—Dallas 1961, writ ref’d n. r. e.); Keelin v. Hamilton, 430 S.W.2d 268 (Tex.Civ.App.—Dallas 1968, no writ).

We have reviewed the record in its entirety concerning the grounds asserted by defendant for a continuance. We hold that the denial of both motions did not constitute an abuse of discretion. Point 23 is overruled.

Plaintiff was involved in a one-vehicle accident at about 7:00 p. m. on July 7,1973, while driving his 1973 Ford Ranger pickup truck down F. M. Road 457 from Sargent, Texas to Bay City, Texas. This section of F. M. Road 457 is straight, level, and paved with improved shell shoulders. It had been raining earlier during the day and the shoulders were wet. Plaintiff lost control of his truck as he was driving along the road; his truck left the paved portion of the road and eventually ended up in a bar ditch. According to him, a mobile telephone unit, which was installed in his pickup truck, came loose from its mounting, struck his right leg and caused him to lose control of the truck.

Installed in plaintiff’s truck was a Motorola mobile telephone unit which had been leased by plaintiff from defendant. The entire unit was actually comprised of several component parts. First, there was a radio unit having the approximate dimensions of eleven inches by twenty-two inches by five inches, and weighing about forty pounds. Second, there was a phone unit having the approximate dimensions of eight inches by eight inches by five inches, and weighing about two pounds. Third, there were mounting brackets used to secure the phone unit to whatever surface it happened to be mounted. Fourth, there was a “universal mounting base,” or “case” as it is described by the witnesses, in which the radio unit could be mounted. Finally, there were mounting brackets which could be used to support the radio unit and case if secured to an unlevel surface.

It is undisputed that the radio component of the unit and mounting base were installed lengthwise across the transmission hump of the plaintiff’s truck. The phone component was in turn mounted on top of the radio. Apparently, mounting brackets were used to support the mounting base and radio unit.

The unit was installed for plaintiff by Mr. Alva Springer, an employee of the defendant, on October 13, 1972. Springer was, at the time, in charge of installing mobile phone units for defendant in Bay City. The actual unit itself was not introduced into evidence. It was, at defendant’s request, removed by Springer after the accident while plaintiff’s truck was parked at the local Ford Company lot.

Defendant, in points 5, 7, 9, 11, 13 and 15, contends that there was no evidence to support the trial court’s findings of fact regarding negligent or defective installation of the unit, and also challenged the findings in points 6, 8, 10, 12, 14 and 16 as against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In reviewing the “no evidence” points we consider the evidence in its most favorable light in support of the findings; we consider only the evidence and the inferences which support the finding, and reject the evidence and the inferences which are contrary thereto. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). In reviewing the “against the great weight and preponderance of the evidence” points, we consider and weigh all of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In summary, the trial court found that the unit was improperly installed (mounted on the transmission hump with brackets instead of under the seat or on a flat surface where all four corners of the base could be securely attached to the truck); that the improper installation was negligence and a proximate cause of the accident, which rendered the product defective and in an unreasonably dangerous condition, which was a producing cause of the accident.

In an installation case, the test for negligence is, of course, simply whether the supplier of the goods exercised due care when it installed the items. The test for defect is whether some feature of the installation, i. e., either the materials used or the manner of installation itself, threatened harm to persons using the item to the extent that any such item so installed would not be placed in the channels of commerce by a product supplier aware of the risks or to the extent that the item would not meet the reasonable expéctations of the ordinary consumer or user as to its safety. Miller v. Bock Laundry Machine Co., 568 S.W.2d 648 (Tex.Sup.1978); General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex.Sup.1977); Henderson v. Ford Motor Company, 519 S.W.2d 87 (Tex.Sup.1974).

Apart from the manner of installation of the unit, and regarding the circumstances of the accident itself, plaintiff testified that the radio unit came loose while he was driving down the highway, fell over onto his leg, and caused him to lose control of his truck. Prior to the unit coming loose, he had not hit any bumps or holes. He was looking straight ahead and the road was straight and smooth. He also said that the unit had become “loose” for an unspecified period of time prior to the accident.

Springer, defendant’s expert witness, at the time of trial did not have an independent recollection of the specific manner in which he installed the unit. He did testify, however, that he had to “more or less shoot from the hip” in deciding how to install the unit. His only guideline in this regard was an instruction booklet published by Motorola, the manufacturer of the unit. While this booklet, which was admitted into evidence without objection, provides a rather detailed description of how to install a mobile phone unit in an automobile, it does not contain any instructions regarding installation thereof in a pickup truck. It does state, however, that the radio set (and mounting base, if used) must be secured in a flat level position to prevent warping or twisting. If no suitable surface is present, the larger space washers (supplied in. the mounting kit) were to be used in order to keep the base level.

According to Springer, the standard mounting procedure followed in installing a mobile phone was to first determine where the unit should go; and, when so determined, the unit should go on the flattest surface available. The mounting case is secured to the surface by screws at all four corners, unless brackets are required. Use of brackets is not the preferred method because it does not secure the unit flat' on the transmission hump. The radio unit is placed inside the case by opening the lid, placing the unit down into the case and sliding the unit into place. The phone unit can be mounted in any number of places including the dash, or, on the case itself.

Springer further testified that he mounted the unit on the transmission hump because there was no other place to put it. He also said that the unit could not be installed behind the seat because of the gas tank, and that the unit could not be placed under the seat because there was not sufficient room. He further stated that it could not be placed on the floorboard on the passenger side because the floor was uneven in some respects. The only other option would have been to place the unit outside the cab in a weatherproof box, which would have increased the cost to the user. Springer did not remember whether the plaintiff was ever offered this option.

Springer’s testimony was supported by that of Mr. Danny Mitchell, who was in the business of selling and installing mobile phone units in automobiles and trucks. He did some work for the defendant on an independent contractor basis. He testified that the only place one could install a mobile phone unit like that involved in this case was on the transmission hump. Neither Springer nor Mitchell testified that either had actually tried sliding the same type of unit under the seat of a truck similar to the truck owned by plaintiff.

Some photographs were taken of the inside of plaintiff’s truck after the accident. The identity of the person who took them and the exact date that they were taken were not established. The photographs show a mobile telephone unit on the driver’s side of the cab sitting ajar of the transmission hump. Mr. Kenneth Garcia stated that the photographs, which were duly authenticated and introduced into evidence, accurately reflected what he saw when he inspected plaintiff’s truck after the accident.

Mr. John Wofford, Jr., an expert witness for plaintiff, testified that the unit should have been installed partially under the seat of the truck, on the passenger side of plaintiff’s truck. He further testified that he never allowed any of his employees to mount mobile phone units on the transmission hump of a truck because of the serious risk of harm to the driver. According to him, mounting the unit under the seat would be no more expensive than mounting it on the hump, and perhaps quicker as well. He also testified that he would not have used brackets like the one pictured in the photographs of the inside of plaintiff’s truck because of the risk that they would not adequately secure the unit.

Regarding the mounting of the unit lengthwise across the hump rather than parallel to the hump, all the witnesses apparently agreed that the unit would not fit if it were placed parallel to the hump. At least four and one-half inches of clearance in the front and 6 inches clearance in the back were required. Therefore, if the unit was mounted on the hump at all, it would have to be done so crosswise, thus necessitating the use of brackets to support one end above the floorboard.

Springer also testified that hump mounting with brackets was not the preferred way to install mobile phones because of the risk of the unit loosening up and interfering with the driver. The preferred manner of installation was to mount the radio unit and base on a perfectly flat surface with all four corners securely fastened. Springer and Mitchell both said that they would use self-tapping screws to fasten the unit to the surface. Such screws came with the unit. Wofford stated that he would use nuts and bolts. The undisputed dimensions of the radio unit were eleven inches by twenty-two inches by five inches, and weighed approximately forty pounds. Wofford, however, identified the unit shown in the pictures as eleven inches by twenty-two inches by three inches, which weighed approximately twenty-five pounds.

The defendant contends that Wofford’s testimony is “no evidence” because it was based largely on photographs from which no reasonable factual information can be gleaned and because he described the unit he was testifying about as being two inches lower and fifteen pounds lighter than what the evidence conclusively shows. We do not agree. Wofford testified to other facts as well. Viewing the evidence most favorably to plaintiff, however, we think that the defendant’s arguments go more to the weight of the evidence rather than to its legal sufficiency.

Wofford had been in the business of installing mobile phones for twenty-five years. He had worked with Motorola units before, and was familiar with proper installation practices. We cannot say that it would have been impossible for him to identify the particular unit he was supposed to be testifying about from the photographs introduced into evidence. While the photographs are somewhat fuzzy, they do provide a fairly clear picture of the unit itself. We therefore find that the photographs constituted some evidence in this case of improper installation of the unit.

After considering only the evidence and the inferences tending to support the challenged findings, and after disregarding all evidence and inferences to the contrary, as we must do under the rule announced in Garza v. Alviar, supra, we hold that the testimony of plaintiff, and of Wofford, along with the photographs above mentioned, constitute sufficient evidence which supports those findings. Accordingly, points 5, 7, 9,11,13 and 15, defendant’s “no evidence” points, are overruled.

We next consider the “against the great weight and preponderance of the evidence” points relating to the findings that the mobile telephone unit was improperly installed. Such evidence has already been set out in our discussion of the “no evidence” points. Concerning whether or not defendant was negligent in the manner in which the unit was installed, or whether or not it was defectively installed, there is a clear conflict in the evidence.

It is within the sole province of the trier of fact, who had the opportunity to observe the demeanor of the witnesses on the stand, to judge their credibility and the weight to be given their testimony, to resolve conflicts in the testimony of one witness with that of another, and to believe part of a witness’ testimony and to disregard other portions thereof. United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.—San Antonio 1951, writ ref’d); Johnson v. Buck, 540 S.W.2d 393 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.).

After carefully considering and weighing all of the evidence relating to the trial court’s findings that the accident was proximately caused by defendant’s negligent and defective installation of the unit, we hold that such findings are not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Points 6, 8, 10, 12, 14 and 16 are overruled.

Defendant, in point 17, asserts that the trial court erred in admitting into evidence, over objection, Wofford’s testimony to the effect that mounting the unit on the transmission hump of plaintiff’s truck would be unreasonably dangerous, since “no predicate was laid as to the manner in which the unit was installed, or as to the specifications of the materials used,” and Wofford had no personal knowledge of the interior of the cab of plaintiff’s truck, or the manner in which the unit was installed therein, or of the specifications of the materials used. We do not agree. The admission of such testimony, under all of the evidence presented by the record, did not constitute reversible error. Point 17 is overruled.

We cannot consider defendant’s points that the trial court erred in awarding judgment because plaintiff assumed the risk of injury by continuing to operate his truck after he knew that the unit was “loose,” and that the trial court erred in rendering judgment because the amount was in excess of the amount allowable under applicable federal tariffs those defenses were not affirmatively pled by defendant in its amended original answer, its live pleading, and a trial amendment was not requested by defendant. See Rule 94, T.R. C.P. The issues were not tried by consent. Points 18 and 21 are overruled.

Regarding contributory negligence as a defense to plaintiff’s action, defendant has brought forward three points of error. First, it attacks the judgment of the trial court on the ground that the plaintiff’s operation of his truck while under the influence of alcohol was established as a matter of law (Point 1). Second, it contends that the trial court’s finding that plaintiff was not inebriated is against the great weight and preponderance of the evidence (Point 2). Third, it asserts that the trial court erred in failing to find that the accident was caused by plaintiff’s negligence in operating his vehicle at a higher rate of speed than it would have been operated by a person of ordinary prudence, acting under the same or similar circumstances (Point 4). Closely related to the contributory negligence points is point 3, wherein it is claimed that the trial court erred in failing to admit into evidence the testimony of Officer Wilson, who investigated the accident, as to conversations he had with a bystander at the scene of the accident, who described to Wilson certain movements of plaintiff’s truck on the road preceding the accident. None of the points have merit.

To briefly summarize the evidence relevant to the issue of the plaintiff’s alleged contributory negligence, we begin with his own testimony on cross examination by counsel for defendant. On cross examination, plaintiff testified that he was neither speeding, nor had he been drinking at the time the accident occurred. He said that he was traveling 50 m. p. h. at the time of the accident. The accident occurred on a stretch of highway which was within a 70 m. p. h. zone, the then legal speed limit.

The only other testimony offered by defendant that is relevant to the issue of contributory negligence was that of Officer Wilson. On direct examination, Wilson testified that when he arrived on the scene he found the plaintiff unconscious inside the pickup truck. While attempting to ascertain whether the plaintiff was breathing, he smelled the odor of intoxicating liquor on the plaintiff’s breath. He also noticed a broken whisky bottle and several empty beer cans in the truck. No blood or breathalyzer tests were performed. Wilson did not observe plaintiff walk, talk, drive, or otherwise move.

Wilson did not see plaintiff on July 7, 1973, until he arrived at the scene after the accident had occurred. He said on direct examination that plaintiff’s truck was traveling at a “high rate of speed” at the time of the accident. He defined “high rate of speed” as anything exceeding the speed limit; but on cross examination, however, he admitted that the rate of speed in this case was just a guess on his part. He further stated that he could not swear that plaintiff was intoxicated at the time and place in question. He also admitted on cross examination that he could only guess at the distance traveled by plaintiff’s truck after it left the road.

In addition to his own sense impressions, Wilson was also asked to testify as to certain statements allegedly made to him while investigating the accident by an unidentified motorist who claimed he had been following and observing plaintiff. The trial court sustained plaintiff’s objections to this testimony, but allowed the defendant to offer it as a bill of exception. According to Wilson, he was approached by an unidentified motorist about 45 minutes after he arrived on the scene. The motorist allegedly told Wilson that he had been driving behind the plaintiff a few miles up the road and had observed him go off the road several times. The motorist also allegedly told Wilson that he had wondered to himself at the time whether the plaintiff would ever make it to Bay City.

According to Wilson, he had already formulated the opinion that the plaintiff had been speeding while intoxicated before being approached by the unidentified witness. To use Wilson’s own terminology, the statements by the motorist merely “cemented” his opinion.

Taking up defendant’s point of error regarding the admissibility of the excluded statements by the motorist, defendant bases its argument for admissibility on grounds of res gestae.

It has been said that res gestae evidence is not the witness speaking but the transaction voicing itself. Knapik v. Edison Bros., Inc., 313 S.W.2d 335 (Tex.Civ.App.—Waco 1958, writ ref’d). Moreover, while the trial court has considerable discretion regarding the admissibility of statements offered as res gestae, we must still review the question of admissibility as we would any other question of law. Truck Insurance Exchange v. Michling, 364 S.W.2d 172 (Tex.Sup.1963).

We hold that the unidentified motorist’s statements were not admissible, and that the trial judge did not abuse his discretion in refusing to admit them. To be admissible as res gestae, the statements must be shown to have been a spontaneous reaction to an exciting event. Hartford Accident & Indemnity Company v. Hale, 400 S.W.2d 310 (Tex.Sup.1966). The circumstances must be such as to create a reasonable presumption that the statements were the spontaneous utterance of thought created by or out of the occurrence itself. Truck, supra. Here, we have an unidentified witness approaching an investigating officer at least 45 minutes after the officer arrived on the scene. The witness did not observe the accident itself, but merely observed plaintiff driving the truck a few miles before the accident occurred. Most importantly, the motorist’s statements to Wilson were not uttered at the time of the exciting event (the alleged movement off and on the road by the plaintiff), but rather at a later time (the arrival by Wilson at the scene). We cannot say that the statements represented a spontaneous reaction to an exciting event.

Defendant cites us to two Texas cases which it claims are in point. However, both Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474 (1942) and Claybrook v. Acreman, 373 S.W.2d 287 (Tex.Civ.App.—Beaumont 1963, writ ref’d, n. r. e.), relied upon by defendant, involved statements made by the declarants to the testifying witness at the time of the exciting event. In the case at bar, we have statements allegedly made almost an hour after the accident. We do not think that such statements are sufficiently spontaneous to save them from the suspicion of being either manufactured or unreliable evidence.

Under the record before us, we do not think that either drunken driving or speeding were proved as a matter of law, nor was the trial court’s failure to find that the accident was proximately caused by the negligence of plaintiff in operating his truck while under the influence of intoxicating liquor against the great weight and preponderance of the evidence. The evidence is simply too meager to compel such a result. Furthermore, we think the same result would apply even if we considered the excluded statements by the motorist. Wilson admitted that his opinions were mere guesswork and we believe there are simply too many possible explanations for the presence of an odor of liquor in the truck. Even if plaintiff had been drinking, there is absolutely no evidence that he was legally drunk. Points 1, 2, 3 and 4 are overruled.

By its point 19, defendant contends that misuse of the unit was proved as a matter of law, which precluded the rendition of judgment in plaintiff’s favor. In point 20’ it is asserted that the trial court erred in entering judgment for plaintiff based upon the finding that plaintiff did not misuse the unit by deciding not to request and obtain service for an alleged defect of which plaintiff was aware, for the reason that such finding is against the great weight and preponderance of the evidence.

The defense of misuse in strict liability actions was recently clarified by the Supreme Court in General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex.Sup.1977). In Hopkins, the court held that “if the product is found to have been unreasonably dangerous when the defendant placed it in the stream of commerce, and if that defect is found to have been a producing cause of the damaging event, and if the plaintiff has misused the product . . . and if that misuse is a proximate cause of the damaging event, the trier of fact must then determine the respective percentages . by which these two concurring causes contributed to bring about the event.” 548 S.W.2d at 352. Additionally, the Supreme Court held in Hopkins that for misuse to be a defense, it must have been unforeseeable to the defendant. Thus, after Hopkins, we can break the defense of misuse down into two primary elements: 1) an unforeseeable misuse, which 2) was a proximate cause of the plaintiff’s accident.

In the case at bar, defendant urges two theories of misuse. First, it argues that plaintiff misused the mobile phone by operating his pickup truck at high speeds while under the influence of liquor. That is not a misuse, however, of the mobile phone, but rather of the truck. Second, defendant contends that while the plaintiff knew that the mobile phone was loose for sometime, he never reported that fact to the defendant, nor did he ever attempt in any way to have the situation remedied. Further, defendant claims that the plaintiff’s failure in this regard was in violation of his agreement with the defendant respecting the servicing of the unit after its installation.

We agree that misuse can consist of the failure to heed instructions, McDevitt v. Standard Oil Company of Texas, 391 F.2d 364, 365 (5th Cir. 1968) (failure to follow manufacturer’s instructions for the size and pressure); Procter & Gamble Manufacturing Co. v. Langley, 422 S.W.2d 773, 778 (Tex.Civ.App.—Dallas 1967, writ dism’d) (failure to perform test before applying permanent wave solution, or the failure to properly maintain and service a product); Mitchell v. Ford Motor Co., 533 F.2d 19 (1st Cir. 1976) (failure to adjust and maintain brakes on a dump truck). See generally Sales & Perdue, The Law of Strict Tort Liability in Texas, 14 Hous.L.Rev. 1, 78-84 (1976-77). We do not feel, however, that defendant has established either type of conduct on the part of plaintiff in such a way as to bring it within the scope of the misuse defense outlined by the Supreme Court in Hopkins, supra.

While there is evidence in the record on an instruction booklet issued to the plaintiff at the time the mobile phone unit was installed, there is no evidence of the contents of such booklet. The booklet was attached to an answer by the defendant to one of plaintiff’s interrogatories. The answer was then read into the record by plaintiff. However, the booklet itself was never offered into evidence. The duty of this Court is to consider only the evidence tendered or admitted at the time of trial. Gulf Oil Corp. v. Southland Royalty Co., 478 S.W.2d 583 (Tex.Civ.App.—El Paso 1972), aff’d 496 S.W.2d 547 (Tex.Sup.1973).

The relevant evidence in this case is contained in the testimony of the plaintiff as well as that of Kenneth Garcia. Mr. Garcia testified that he had borrowed the plaintiff’s truck before the accident and that the mobile phone appeared secure on the floorboard. The plaintiff, on the other hand, admitted that the unit had been wobbling before the occurrence of the accident; that he thought he should have done something about it, but that he never reported the situation or attempted to have it fixed.

Accepting the fact that the unit wobbled and that the plaintiff knew this, we cannot say that plaintiff’s action amounted to misuse as a matter of law. First, defendant did not establish how badly the unit was wobbling before the day of the accident. The trier of fact was thus unable to determine whether plaintiff’s conduct amounted to an unintended or abnormal use of the mobile phone. Second, even if plaintiff’s actions amounted to a misuse in the sense of an abnormal or unintended use, we do not believe that it was established in the trial court that this misuse was unforeseeable to the defendant. Hopkins, supra. Weighing all the evidence, we hold that the failure to find misuse of the unit by plaintiff was not against the great weight and preponderance of the evidence.

For the reasons stated, defendant’s points to the effect that the trial court erred in failing to find that plaintiff was guilty of contributory negligence and misuse of the unit, each of which was a producing cause of the accident and which proximately caused the accident cannot be sustained. Points 19 and 20 are overruled.

The judgment of the trial court is AFFIRMED.