author: COLEMAN, Chief Justice.

text:
    Roger Lynn DAVIS et al., Appellants, v. Morgan Ray RABON et al., Appellees.
    No. 16818.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 3, 1977.
    Rehearing Denied March 3, 1977.

      Kronzer, Abraham & Watkins, Robert E. Ballard, Michol O’Connor, Houston, for appellants.
    Hugh Rice Kelly, Thomas R. Phillips, Houston, Baker & Botts, Houston, of counsel, for appellees.
   COLEMAN, Chief Justice.

This is an appeal from a take nothing judgment entered in a suit to recover damages for bodily injuries growing out of a collision between a truck and a motorcycle. The judgment was entered on a jury verdict finding primary negligence and contributory negligence.

The plaintiff, Roger Lynn Davis, was riding his motorcycle in a westerly direction on Creekmont Road. The defendant, Morgan Ray Rabón, was driving a truck owned by the Houston Lighting & Power Company in an easterly direction on the same street.

The jury found that Rabón failed to give a continuous left turn signal during the last 100 feet before turning and that such failure was a proximate cause of the collision. The jury also found that Rabón began to turn left when the vehicle driven by Davis was approaching so closely as to constitute an immediate hazard and such failure to yield was a proximate cause of the collision. The jury then found that the plaintiff was driving at a greater rate of speed than a person using ordinary care would have driven and that this was a proximate cause of the collision.

The plaintiff has appealed contending that there is no evidence, or in the alternative insufficient evidence, to support the jury’s finding on speed or on proximate cause. In reviewing the no evidence points we look only to the evidence having probative force which favors the verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

A bridge was located about 100 yards from the place where the collision occurred. The plaintiff testified that as he approached the bridge he was traveling some 25 to 30 miles per hour and that he slowed down some as he crossed the bridge. The plaintiff testified that when the road was wet he sometimes slowed down to 15 to 20 miles per hour and that that was a safe speed under those conditions. There was testimony that the road was wet at the time of the collision. The paved portion of the road was about 18 feet in width. The road was paved with asphalt. Shallow ditches were on each side of the road. The motorcycle laid down 87 feet of skid marks. The collision occurred about two feet from the edge of the plaintiff’s side of the road. The motorcycle hit the truck at a point between the rear wheel and the bumper. There was testimony that the motorcycle slid sideways the last 20 to 25 yards before hitting the truck.

There is some evidence having probative force from which the jury was entitled to conclude that the plaintiff was driving faster than an ordinarily prudent person would have driven under the same or similar circumstances. The jury would be entitled to conclude that 25 miles an hour is an excessive speed for a motorcycle traveling on a comparatively narrow wet asphalt street. Garza v. Anderson, 417 S.W.2d 368 (Tex.Civ.App.—Corpus Christi 1967, no writ history); Fitzgerald v. Russ Mitchell Constructors, Inc., 423 S.W.2d 189 (Tex.Civ.App.—Houston [14th] 1968, writ ref’d n. r. e.); Villarreal v. Zouzalik, 515 S.W.2d 742 (Tex.Civ.App.—San Antonio 1974, no writ history).

The jury might have determined from the evidence that had the motorcycle been traveling at a slightly slower rate of speed the truck would have had time to have crossed the street safely. The jury might also have believed that the speed prevented the plaintiff from taking evasive action to avoid the accident. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957); Alexander v. Appell Drilling Co., 290 S.W.2d 377 (Tex.Civ.App.—Waco 1956, writ ref’d n. r. e.).

A closer question is presented by the insufficient evidence assignment. We must consider all of the evidence and determine whether or not the verdict is manifestly unjust. With the exception of the defendant, all of the witnesses who testified remembered that the road was dry and the records of the investigating officer indicated that it was a clear day and a dry road at the time of the collision. The evidence was also strongly controverted on the question of whether the plaintiff lost control of his motorcycle prior to the collision.

The plaintiff’s version of the events leading up to the collision cannot be reconciled with that recounted by the defendant driver. As the plaintiff approached the scene of the collision he crossed a bridge which was located between 100 and 140 yards from the scene of the collision. This bridge sloped both ways from the center. On the west side of the bridge there were some holes and mounds. Roger testified that he was well acquainted with this stretch of road and with the condition of the bridge. He knew that he could not go over it real fast on his motorcycle. He approached the bridge on this occasion at a speed of 25 or 30 miles per hour. As he crossed the bridge he slowed down because of the drop-off and the holes in the road. He saw the Light Company pick-up when he approached the bridge. It was traveling slowly in his direction in the middle of the road. He was able to cross the bridge without hitting any of the holes and did not lose control of his motorcycle as he came off the bridge. He was driving in the middle of his side of the road at about 25 miles per hour. He did not speed up and continued to watch the truck. He saw no other vehicles on the road. Without giving any warning the truck turned to the left in front of him in the direction of a private driveway. He immediately hit his brakes. At that time the truck was about three car lengths from him. He did not have time to go around the truck, and he hit it right behind the back wheel. The plaintiff admitted that on a previous deposition he had testified that the accident happened in the middle of the street rather than in the middle of his side of the street as he testified at the trial. He also retracted his deposition testimony that he had found some skid marks out there in the middle of the road starting about three car lengths back of the point of collision and leading up to the point of collision. In his deposition he testified that the truck was blocking the entire street.

The plaintiff testified that it wouldn’t have been safe to go across the bridge at 40 miles an hour because he would probably get air borne. He said he did not get air borne. He also testified that he did not lose control of his bike after he hit the bumps ynear the bridge.

Clyde Robinson, a witness called by the plaintiff, testified that he saw the collision from his position inside his house. The truck made a left turn into his driveway. At the time of the collision the truck was about half way off the blacktop portion of the street. He saw the motorcycle begin sliding right about at his mailbox and it continued some 75 feet to the point of collision. The truck was moving slowly and did not completely stop until it had cleared the road after the accident had occurred. He heard Mr. Rabón tell Roger’s father that he didn’t see Roger. He testified that it would have been possible for Roger to go around the truck if he had not been skidding, but that it is impossible to straighten out a motorcycle once it begins skidding.

Michael Ray Reed, a sixteen year old boy, who was a friend of the plaintiff, lived near the scene of the collision. He testified that at the time of the collision he was in his back yard playing basket ball on a dirt court, and that the ground was dry. He saw the pick-up truck and the motorcycle meeting. He testified that the truck driver was looking at the meter in the yard and that he just turned in front of the motorcycle. He knew Roger and had talked to him that morning. He saw the actual collision and it occurred on the paved portion of the road.

Officer Bobby Cartwell testified that he investigated the accident. He received the report about 10:20 and arrived on the scene at 10:40. He was informed that the accident happened about 10:00 o’clock. He located the point of collision as being near the edge of the blacktop on the motorcycle driver’s side of the road. There was some 87 feet of skid marks. He did not remember any rain that day, and the report which he made at the scene indicated that the road was straight and dry. He testified that he did not remember Mr. Rabón telling him that at the time of impact his truck was parked well up in the driveway and that it had been there at all times prior to the impact. He testified that he did not believe that he would have shown Mr. Rabón as an operator of the truck if it had been parked.

Morgan Ray Rabón, the driver of the truck, testified that he was employed by Houston Lighting & Power Company as a meter reader. He testified that it had rained about an hour before the accident. It was not raining at the time of the accident but there was moisture on the road. A few minutes before the accident he pulled into a driveway off of the road. He got out of the truck and read two meters. He returned to the truck, got in and was sitting behind the wheel at the time of the accident. The truck motor was running and when he realized that the motorcycle would hit him he tried to drive the truck out of the way. He is not certain that the truck moved before the collision but it did move a few feet. While he was sitting in the truck he saw the motorcycle cross the bridge. It appeared to him that the motorcycle driver was trying to make the motorcycle jump as it came off the bridge. When the motorcycle settled down on the road it appeared that the driver was trying to get it under control. The driver kept the motorcycle going in a fairly straight line up until the time of the collision. It appeared that when the motorcycle driver got about 10 to 12 feet from the truck he started sliding sideways. He helped measure the skid marks and found them to be 87 feet in length. He testified that the collision occurred off of the roadway. On cross-examination he again testified that when Davis left the bridge he jumped and had trouble keeping the motorcycle under control when he landed. He testified that Davis was fighting the motorcycle. The motorcycle skidded. It looked like he was getting it under control. Davis continued in a straight line veering toward the truck. Ra-bón has ridden motorcycles all of his life off and on. He stated that any time you lock your brakes anything can happen. Finally he testified that Roger Lynn Davis never got the bike under control and that he was out of control the entire distance between the bridge and the point of collision.

Max Loukanis was called as a witness by the defendant. He testified that on the day of the accident in question he was sitting at his desk in a building located on the street where the accident happened. He heard the accident but did not witness it. Just prior to the accident he heard a squeal which he recognized as the sound usually made by motorcycles as they come over the bridge. When a motorcycle “hit the air” coming off of the bridge the rear wheel would usually spin when it hit the ground. The spinning wheel created the sound which he recognized. The sound caused him to look up and he got a glimpse of the motorcycle through a small door. The rider appeared to be in control of the motorcycle. He immediately went to the scene of the accident, but he cannot remember whether or not the street was wet or whether it rained that morning. He leaves the big door to his place of business closed when it is raining or when there is a strong wind blowing. The door was closed that morning.

Alfred Davis, the father of Roger Lynn Davis, testified that the street was dry when he reached the scene of the accident. The front wheel of the motorcycle was badly bent as was the rear bumper on the pick-up truck. Roger Lynn Davis suffered two broken legs as a result of the collision.

Rabón testified that while he couldn’t judge just how fast the motorcycle was going it “looked like to me he was going too fast.” In the absence of corroborating facts and circumstances such testimony would not be sufficient to raise an issue of negligent speed. Anderson v. Broome, 233 S.W.2d 901 (Tex.Civ.App.—El Paso 1950, no writ history); Williams v. Hemphill County, 254 S.W.2d 839 (Tex.Civ. App.—Amarillo 1952, no writ history).

There are certain circumstances in evidence to support this conclusion of excessive speed. Rabón testified that the motorcycle appeared to be out of control aftér it crossed over the bridge. Davis failed to take evasive action. Garza v. Anderson, 417 S.W.2d 368 (Tex.Civ.App.—Corpus Christi 1967, no writ history). There is the evidence that the vehicle skidded some 87 feet prior to the collision. There is also the testimony concerning the damage to the vehicles and to Roger Lynn Davis.

On the other hand, there is no testimony as to the actual rate of speed the motorcycle was traveling prior to the collision except that of Davis. Nothing in the evidence indicates that the speed of the motorcycle would have been considered excessive were it not for the fact that the pick-up truck turned across the street in the middle of a block to enter a private driveway. The only testimony as to distances at the time this maneuver became known to Davis was his testimony that he was three car lengths away, and the skid mark testimony.

The jury did not accept Rabon’s testimony concerning the events leading up to the collision. Since the testimony as to the wet streets came from Rabón and was contradicted by other witnesses, as was his version of the events leading up to the collision, we think the great weight and preponderance of the evidence leads to the conclusion that the street was dry. Rabon’s testimony that the motorcycle was out of control was speculative rather than positive. At one time he stated, “I can’t say for sure whether he had control,” and at another he stated, “I can’t remember whether he looked like he had it under control or not.” He also testified that the motorcycle maintained a straight course until it started sliding sideways about ten or twelve feet from the point of impact. The evidence does not support a finding that the speed at which the motorcycle was driven across the bridge resulted in loss of control.

Rabón testified that he watched Davis approach on the motorcycle for more than 100 yards, and that he got the impression that the motorcycle was traveling too fast and was not under proper control. Despite the fact that his attention was focused on the motorcycle for this length of time he was unable to testify positively to loss of control or to even estimate the speed of the vehicle. The fact of a relatively long skid mark might be probative evidence of excessive speed in the case of an automobile. Jurors might be expected to have sufficient experience in applying the brakes of automobiles to evaluate such evidence. However, it cannot be expected that the average individual would have enough experience in handling motorcycles to determine the speed of a motorcycle from the length of the skid marks. The testimony concerning the loss of control must be evaluated in light of the further testimony of Robinson and Rabón, both experienced motorcycle drivers, to the effect that once the brake on a motorcycle is applied with such force as to cause the back wheel to skid the machine is out of control. The physical damage to the vehicles as shown in the evidence in this case is not reliable evidence of excessive speed. The facts and circumstances developed in the evidence lack sufficient probative force to support the jury’s finding of excessive speed.

The judgment will be reversed and the cause remanded.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    Yale IZAKS, Appellant, v. The NATIONAL BANK OF COMMERCE, Appellee.
    No. 967.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 4, 1977.

      Larry B. Bach, Greenberg & Bach, Dallas, for appellant.
    Joe B. Harrison, Wynne & Jaffe, Dallas, for appellee.
   MOORE, Justice.

Plaintiff, Yale Izaks, brought suit against defendant, National Bank of Commerce (NBC), for conversion and as grounds for a cause of action alleged that the bank wrongfully accepted certain funds from one of its customers knowing that Izaks owned an interest therein to the extent of $34,-500.00 and thereby deprived him of the use and benefits of such funds. In the alternative, he alleged that he was the holder of a security interest in the funds and sought a foreclosure. The bank answered with a general denial and specially denied that the funds in question were subject to the security interest claimed by Izaks. The bank also filed a cross-action seeking judgment over and against Izaks for usurious interest received by him in connection with the transaction and for attorneys’ fees. Trial was held before a jury. Thereafter, Izaks made a motion for judgment on the verdict. The bank made a motion to disregard the jury’s findings on certain special issues and moved for judgment on the ground that the findings were immaterial. The trial court entered a take-nothing judgment against Izaks and likewise entered a take-nothing judgment against the bank on its cross-action. Both parties gave notice of appeal. The parties may be referred to hereinafter as they appeared in the trial court.

We affirm.

In order to understand the issues involved, a statement is necessary. The controversy commenced on July 17,1972, when Fred A. Speaks (Speaks) borrowed the sum of $90,000.00 from Izaks and executed a note therefor to Daniel Brusslan as nominee of Izaks. The note, together with interest in the amount of $2,000.00, was payable on October 8,1972. As security for the loan, Speaks gave Brusslan a security interest in a contract which he held to purchase a building known as the “Seaco” building. The, $90,000.00 note recited as follows: “This note is secured by an assignment of all of the rights and interests of the undersigned, Fred A. Speaks, in and to or in any ways connected with that certain Contract of Sale dated April 3,1972 between McCas-land & Co., Inc., Vergil McCasland and the undersigned, Fred A. Speaks . . . .” On the same date Speaks also executed a separate security agreement reciting that in consideration for the loan “and as security for the payment of the said note, the said Fred A. Speaks hereby grants to Daniel Brusslan a security interest in and to all of his rights and interest” in the contract to purchase the building. It is without dispute that the agreement was never perfected as a secured transaction under the Texas Business and Commerce Code.

At the time of the loan, the Seaco Building had an appraised value in excess of $2,100,000.00, and Speaks had the right to purchase same, under his contract, for approximately $1,800,000.00. It was his intention to secure long-term financing from NBC at the appraised value of $2,100,-000.00, paying the smaller purchase price to McCasland, thereby generating approximately $300,000.00 in excess loan funds, thereby enabling him to pay the $90,000.00 therefrom. It was agreed that the loan would be repaid out of the excess loan funds. Before he could obtain long-term financing, Speaks defaulted on the note. After default Izaks demanded a partial payment in the amount of $57,500.00. Izaks also demanded an additional $5,000.00 penalty for failure to pay the note on time and for his agreement to delay foreclosure. Speaks, being unable to meet this demand for $62,500.00, went to NBC, explained the situation and requested a loan sufficient to satisfy the demands of Izaks. While unwilling to loan the funds to Speaks because of his substantial debts, NBC agreed to loan the $62,500.00 to Izaks if he provided collateral for the loan by assigning NBC the $90,000.00 note he held on Speaks, together with his security interest in Speaks’ contract to purchase the Seaco building. Izaks agreed to these terms and the loan was made. It was the understanding between Izaks, NBC and Speaks that if NBC provided the long-term financing to Speaks for the purchase of the Seaco building, and if there were excess loan funds, NBC would take $62,500.00 of such funds and apply the same in payment of the $62,500.00 loan to Izaks. However, there was no understanding or agreement concerning how that $62,500.00 would be repaid to NBC in the event that NBC did not provide the long-term financing to Speaks. It was the understanding of all parties that the payment of the remaining $34,500.00 balance on the note due Izaks was a matter between Izaks and Speaks, not involving NBC. Izaks unequivocally testified that NBC did not promise to pay that portion of the note and made no agreement to withhold such amount from any excess loan funds for the benefit of Izaks in the event the bank financed the purchase of the Seaco building.

NBC finally decided not to make the loan to Speaks because of his financial condition. Speaks then sold the contract to purchase the building to R. Scott Clark, III (“Clark”) who, according to the record, had no knowledge of the security agreement between Izaks and Speaks. Thereafter, Clark borrowed approximately $2,100,000.00 from NBC and purchased the building, generating approximately $365,000.00 in excess loan proceeds for Clark’s own account. As a result a check was issued for such amount payable to Clark, NBC and Speaks. Clark and Speaks endorsed the check to NBC. Thereupon the bank took the sum of $62,-500.00 and discharged the loan previously made to Izaks. Clark then directed the bank to apply the balance to the payment of another indebtedness which he owed to NBC. It is in these funds that Izaks claims ownership to the extent of the $34,500.00 which remained due on his $90,000.00 from Speaks.

Although the cheek for excess loan funds was made payable to Clark, NBC and Speaks and was later endorsed by Speaks, there is no evidence showing that Speaks received any of the excess loan funds.

The jury found in response to the following numbered special issues that (1) Izaks and NBC did not agree to release the security agreement made by Speaks securing payment of the $90,000.00 note, (2) NBC had notice of the written security agreement executed by Speaks at the time of the closing of Clark’s loan to purchase the building on December 27, 1972, (3) the $90,-000.00 note had not been paid on or before December 27, 1972, and (5) R. Scott Clark, III had notice of the written security agreement executed by Speaks to secure payment of the $90,000.00 note. Prior to judgment NBC made a motion to disregard the jury’s answers to the foregoing special issues on the ground that there was no evidence to support the findings. While the judgment recites that the court considered the bank’s motion to disregard the jury’s findings, there is nothing to indicate that the court ruled on the motion. Apparently, the trial court agreed with NBC’s motion for judgment on the ground that the jury’s verdict was immaterial and for that reason rendered a take-nothing judgment against the plaintiff.

By his first two points of error plaintiff, Izaks, seeks a reversal on the ground that the court erred in rendering a judgment non obstante veredicto because, he contends, there was evidence to support the jury’s findings on his cause of action for conversion. In reply, the bank takes the position that none of the special issues relate to the elements of conversion and since the evidence fails to conclusively establish that Izaks owned the funds allegedly converted by NBC, plaintiff failed to establish a cause of action for conversion. We sustain the bank’s contention.

In an action for conversion, the plaintiff has the burden of proving the acts relied on as constituting the alleged conversion. See 14 Tex.Jur.2d Conversion sec. 79. Generally speaking, the gist of an action for conversion is the wrongful deprivation of property owned by another. See 14 Tex. Jur.2d sec. 3. In order to recover on the theory of conversion, Izaks had the burden to obtain jury findings or to establish by conclusive evidence that he was the owner of the funds alleged to have been converted. This he failed to do, either by jury findings or by uncontroverted evidence.

In demonstrating that Izaks had no ownership or possessory right to the property allegedly converted ($34,500.00 of the approximate $365,000.00 excess loan proceeds which accrued in favor of Clark as a result of his purchase of the Seaco Building), it is important to examine the theory upon which Izaks claims to have any such ownership rights. Izaks claims that when he loaned Speaks the $90,000.00, it was the intention of the parties that repayment of the loan would be made from the excess loan proceeds accruing to Speaks when he secured long-term financing for the Seaco building. It is undisputed that Speaks failed to obtain a loan and, therefore, he never obtained any excess loan funds. Consequently, Izaks never became the owner of any excess loan funds because Speaks received none and passed none to the bank. In these circumstances it cannot be said that the bank deprived him of funds owned by him.

It was Clark, a stranger to the transaction, who obtained the long-term financing and acquired the Seaco building, and by so doing, created excess loan funds for his own account. Clark is not a party to this suit and did not testify as a witness. Insofar as this record shows he acquired Speaks’ contract to purchase the building without knowledge of the written security agreement between Speaks and Izaks and without knowledge of their oral agreement that the note would be paid out of the excess loan funds. In order' to have established any possessory or ownership interest in the excess loan funds, Izaks had to rely upon some type of contractual agreement. There was no finding and no evidence that Clark agreed that the $34,500.00 due Izaks would be paid out of the excess loan funds. While Clark, for some unexplained reason, allowed the bank to take out $62,500.00 in payment of Izaks’ note to NBC, Clark instructed the bank to apply the remainder to his indebtedness to NBC. The excess loan funds were borrowed by Clark; the deed of trust which secured said note was executed by Clark, not Speaks; and title to the Seaco building was taken in the name of Clark. There is no evidence that NBC agreed to withhold from Clark’s excess loan funds the $34,500.00 balance due on the $90,000.00 note. Even if the agreement between Izaks and Speaks amounted to an assignment of the excess loan funds in payment of the $90,000.00 note, that agreement could not reach the excess loan proceeds in the hands of Clark in the absence of any notice thereof or any agreement to be bound thereby. Accordingly, Izaks had no ownership or pos-sessory right to the funds which Clark paid to NBC. It follows, therefore, that NBC, not having taken possession of the funds owned by Izaks, would not be liable for conversion.

Under his third point plaintiff contends that the trial court erred in refusing to foreclose his security interest against the excess loan funds transferred to the bank by Clark in payment of his indebtedness. Izaks takes the position that since the jury found that NBC had notice of his written security interest, the bank took the excess loan funds subject thereto. Therefore, he contends that he is entitled to a foreclosure on such funds in the hands of NBC to the extent of the $34,500.00 balance due on his note. He argues that both NBC and Clark had notice of his written security agreement, and that notice of the written agreement was sufficient to put them on notice of the oral agreement between Izaks and Speaks that the $90,000.00 note would be paid out of the excess loan funds. We think the contention is untenable. First, there is no evidence and no finding that either Clark or NBC had any knowledge of the oral agreement between Speaks and Izaks. Secondly, even though the evidence shows that NBC had knowledge of the written security agreement, we do not believe the written agreement was sufficient to charge NBC with knowledge of the oral agreement. The written agreement did nothing more than give Izaks a right, upon default in the payment of the $90,000.00 note, to take proper steps to foreclose on the contract itself and step into the shoes of Speaks as owner of the contract to purchase. Since the written security agreement contained no language showing that it extended to or covered excess loan proceeds, it was insufficient to charge NBC or Clark with notice of a security interest therein. Tex.Bus. & Com.Code Ann. sec. 9.203(a)(2). While the bank knew that Speaks had promised to repay Izaks’ $62,-500.00 note out of excess loan funds, there is no evidence that the bank knew that Speaks had promised to pay the remaining $34,500.00 out of such funds. As to the remaining $34,500.00, both Izaks and Speaks testified that this was a matter between them, and the bank was not involved.

In the absence of any evidence that Clark had notice of the oral agreement between Izaks and Speaks assigning Izaks a security interest in the loan proceeds, and in the absence of any evidence showing that NBC had notice that their oral agreement as to the application of loan proceeds extended to the entire amount, including the $34,500.00 remaining due on the note, it follows that Izaks’ alleged $34,500.00 security lien on the loan proceeds was never perfected and NBC was entitled to deal with the funds in the manner directed by Clark without regard to the claim of Izaks. The trial court, therefore, properly refused to order a foreclosure.

We agree with the bank’s contention that the jury’s finding on Special Issues 1, 2, 3 and 5 are not controlling and are immaterial. Plaintiff’s entire case, as we understand it, rests on the oral agreement in which Speaks promised to pay the note out of the excess loan funds and that Clark and NBC had knowledge thereof and became bound thereby. While the jury found, in response to the second and fifth special issues, that Clark a,nd NBC had notice of the written security agreement, these findings are immaterial because knowledge of the written agreement would not constitute notice of the oral agreement. Special Issue No. 3 is immaterial because it was undisputed that the note had not been paid before December 27, 1972, the date on which the loan on the building was closed and the date the bank received the excess loan funds from Clark. Special Issue No. 1 is immaterial because it is undisputed that Izaks and NBC did not agree to a release of the written security agreement.

We cannot agree with the plaintiff’s contention that the trial court’s judgment is to be construed as a judgment non obstante veredicto. Although the bank filed a motion to disregard the finding on issues 1, 2, 3 and 5, the court made no ruling thereon. The judgment was rendered on the basis of the bank’s motion for judgment alleging that the findings relied on by Izaks were not controlling and immaterial.

It is well settled that where the jury’s findings are immaterial the trial court is authorized to ignore such findings and render judgment. First Am. Life Ins. Co. v. Slaughter, 400 S.W.2d 590 (Tex.Civ. App.—Houston 1966, writ ref’d n. r. e.); Camco, Inc. v. Evans, 377 S.W.2d 703, 707 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.); See Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952).

This brings us to the bank’s cross point of error contending that the trial court erred in failing to enter a judgment against Izaks on its cross-action for usurious interest allegedly paid to him on behalf of Speaks. The jury found that the bank paid Izaks the sum of $6,250.00 as interest on behalf of Speaks on Izaks’ $90,000.00 note. According to the bank’s calculations, this amounted to usurious interest. The bank moved for judgment on the verdict for double the amount found by the jury. The bank contends the trial court erred in rendering a take-nothing judgment against it and now seeks to have this court render judgment in its favor for $12,500.00. The contention is without merit and is overruled.

The bank does not seek to recover for usurious interest paid by it, but seeks only to recover usurious interest paid by it on behalf of Speaks. Since the bank suffered no injury, we fail to see how a cause of action could arise in favor of the bank. If a cause of action for usurious interest accrued, it accrued in favor of Speaks and not the bank.

The judgment of the trial court is affirmed.

      . Since Izaks is the real party at interest, he will hereinafter be treated as if he were the payee on the note.


author: SHANNON, Justice.

text:
    INSURANCE COMPANY OF AMERICA, Appellant, v. Billie K. ROYER, Independent Executrix, Appellee.
    No. 12487.
    Court of Civil Appeals of Texas, Austin.
    Feb. 9, 1977.
    Rehearing Denied March 9, 1977.

      Frank G. Newman, John L. Shook, Newman, Shook & Newman, Dallas, for appellant.
    Fred E. Davis, Davis & Davis, Austin, for appellee.
   SHANNON, Justice.

Dale E. Royer sued appellant, Insurance Company of America, in the district court of Travis County. Royer sued for premium renewals purportedly due him from an agent’s contract between him and appellant. After trial to the court, judgment was entered for appellee, Billie K. Royer, for $19,314.82 and attorney’s fees of $5,000.00.

In January, 1969, appellant and Royer entered into a form agent’s contract denominated a “Sales Manager's Contract.” By the terms of the contract Royer was appointed sales manager for the purpose of procuring applications for life insurance.

In her trial petition appellee pleaded that pursuant to the contract Royer obtained applications for insurance and continued to do so through September, 1972. Likewise, appellant accepted the applications for insurance and paid commissions to Royer on the policies in force through September, 1972. Appellee declared that on October 1, 1972, appellant terminated the contract and refused to continue payment of renewal commissions to Royer. Appellee alleged that she was entitled to recover $20,000 in renewal premiums from appellant.

In its trial pleading, appellant averred that the agent’s contract had terminated by its terms on January 6,1971, and that, as a result, appellant owed Royer nothing.

After entry of judgment, appellant did not request the court to file findings of fact and conclusions of law,-and the court did not do so. This being so, it is assumed on appeal that the court found every fact necessary to sustain the judgment if such factual propositions were raised by the pleadings and supported by the evidence, Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950), and the judgment will be affirmed on any legal theory that finds support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962).

In its points of error appellant raises the several provisions of the contract which allegedly bar Royer’s recovery of the renewal commissions. Appellant contended Royer’s right to renewal commissions terminated on January 6, 1971, because of his failure to maintain the “persistency level” required by the contract. In this connection, the term “persistency level” refers to the provision in the contract which provides for its termination and the termination of payment of renewal commissions if less than eighty-eight percent of all policies written by the agent during any year remain in force at the end of the year. Appellant claims further that Royer violated the clause of the contract requiring the agent “ . . .to faithfully devote his full time to the service of the company hereunder, and agrees not to engage in any additional line of endeavor . . . ” since Royer undertook to sell real estate for the Horizon Corporation while he was still under contract with appellant. Appellant maintains further that it did not waive the termination provisions since another paragraph of the contract provided that appellant “ . shall not be deemed to have waived any right under this Agreement unless it shall do so in writing by a contract signed by the President or Secretary of the Company.”

For purposes of this opinion we will assume that Royer failed to maintain the required “persistency level” and that he sold real estate for Horizon Corporation during the existence of the contract with appellant. Nevertheless, the court’s implied finding that appellant waived Royer’s compliance in those respects is correct.

Appellant argues that there can be no waiver of the provisions of the contract requiring the certain “persistency level” and prohibiting other employments. This is so, says appellant, because of the contractual provision prohibiting waiver of any provision of the contract unless the waiver was in writing and signed by its officials. Despite the contractual requirement of written waiver, appellant could waive those provisions or by the conduct of its officers estop itself from insisting upon their enforcement to the same extent that it would have had that power had there been no provision requiring written waiver. 3A Corbin on Contracts § 763 (Rev. ed. 1960), Fisher v. Tiffin, 275 Or. 437, 551 P.2d 1061 (1976), Davis v. Payne and Day, Inc., 10 Utah 2d 53, 348 P.2d 337 (1960).

There was much evidence which the district court could consider, and believe, which supported its implied finding of waiver. For example, appellant continued to pay Royer renewal commissions for about eighteen months after the time appellant claims the contract terminated. During the same period of time appellant awarded Royer a silver service in recognition of his work performance. Royer’s deposition testimony was admitted concerning Royer’s conference with appellant’s president in March, 1971. The subject of renewal commissions was discussed at that conference and, according to Royer, appellant’s president assured him that there was nothing to worry about.

The admission of testimony of W. K. Huffman forms the basis for appellant’s points of error nine and ten. Appellee called Huffman for the purpose of testifying as to the amount of renewal commissions due under the agent’s contract. Huffman is a vice-president of a life insurance company and is experienced in the development of computer systems for use in the life insurance business. Huffman had assisted appellant in the establishment of its computer record-keeping system, and had designed the internal coding for that system. In general, he had been furnished information concerning commissions on business that Royer had produced and had projected calculations with respect to the renewal commissions due Royer from appellant. Counsel for appellee then asked Huffman to testify as to the amount which he had calculated was due Royer. At that time appellant’s counsel made the following objection:

“If the Court please, we object to all this testimony as being based upon speculation or hearsay. He is not limiting it to facts he has of his personal knowledge. He is drawing legal conclusions. The mere fact that the — that he doesn’t testify to anything from the books and records, merely something that he has that he bases some assumptions on, that he is—he hasn’t shown himself to be such an expert as to sit here and take assumptions and go 10 years in the future and come up with figures, and we haven’t seen the instruments which he has worked from, shouldn’t be allowed to state his conclusions from documents that are not in evidence but what he understood by what somebody told him or by what he assumes either as to commission rate or as to assumptions as to lapses or assumptions as to continuances.
“In other words, what he is fixing to give now is a 10-year or 6-year, you might say, projection into the future of what these people claim that they want to recover, and those years haven’t occurred yet. That is, there has not been any premiums collected, there has not been anything on which you can base any assumption. In other words, as long as his figures are with reference to things that have happened and that occurred and that are in black and white, all right but he is not competent to testify to things in the future, no matter what his assumption is. In other words, one man might take one assumption, and another, another one, and another, another one and he is fixing to testify now as to what this shows projected into the future, not what happened—not showing what happened in the past, and I say that no expert witness is entitled to do that in this kind of a lawsuit. In other words, you’ve got to wait your time. If you are entitled to some more later on, you’ve got to sue for it. In other words, you can’t sit here, as an expert witness, project on assumptions, 10 years of business and do it on guesswork, speculation and supposition, and we object to all of his figures for that reason."

An objection to the offer of evidence must state clearly and specifically the grounds upon which the objection is based at the time the offer is made. The purpose of the requirement is so that the basis of the objection may be understood by the court in order that it may make an intelligent ruling and so that opposing counsel may have an opportunity to remove the objectionable grounds. Bohanan v. Hans, 26 Tex. 445 (1863), Campbell v. Paschall, 132 Tex.Com.App. 226, 121 S.W.2d 593 (1938). “Covert, obscure objections to evidence should receive no countenance.” Cobb v. Norwood, 11 Tex. 556 (1854).

After a study of counsel’s objection, its meaning remains to us “covert and obscure.” We are quite certain that it must have so appeared to the district court in the press of trial. We have concluded that the objection was too general and that, as a result, appellant waived whatever complaints it may have had concerning Huffman’s testimony.

Appellant’s final point complains that the court erred in permitting Royer’s widow, the executrix of Royer’s estate, to testify concerning transactions with the deceased in violation of the Dead Man’s Statute, Tex. Rev.Civ.Stat.Ann. art. 3716 (1926). Appellant objected to the following question and answer of Mrs. Royer: “Did you have any indication that he [Royer] had considered himself fired?” Mrs. Royer answered: “Absolutely not.”

A “transaction” under the Dead Man’s Statute includes observations of unilateral acts of the deceased. Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298 (1921). In Nimitz the court held that the prohibition includes the testimony with respect to “ . . . every method by which one person can derive impressions or information from the conduct, condition, or language of another.” The rule is still followed. Hart v. Rogers, 527 S.W.2d 230 (Tex.Civ.App. 1975, writ ref’d n. r. e.).

The district court erred in allowing the question and answer in evidence, since Mrs. Royer’s testimony concerned a “transaction” with Royer. Nevertheless, appellant has not demonstrated that the court’s error in admitting the testimony was such a denial of appellant’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Tex.R.Civ.P. 434.

The judgment is affirmed.

Affirmed.

      . During the pendency of the suit in district court, Royer died, and pursuant to Tex.R.Civ.P. 151, Billie K. Royer, independent executrix of the estate of Dale E. Royer, deceased, appeared and prosecuted the suit.


author: O’QUINN, Justice.

text:
    Helen M. VANDYKE, Appellant, v. AUSTIN INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 12459.
    Court of Civil Appeals of Texas, Austin.
    Feb. 9, 1977.
    Rehearing Denied March 9, 1977.

      William S. Rose, Powers & Rose, Austin, for appellant.
    Charlie D. Dye, Scott R. Kidd, Brown, Maroney, Rose, Baker & Barber, Austin, for appellees.
   O’QUINN, Justice.

Helen M. Vandyke brought this lawsuit in October of 1972 against the Austin Independent School District and Thomas Gris-wold Seale for personal injuries sustained when her automobile was struck from the rear by a school bus, owned by the school district and driven by Seale. Defendants answered with claims of contributory negligence and unavoidable accident.

Trial was to the court without a jury. The court entered judgment for defendants and found that plaintiff failed to prove by a preponderance of the evidence that Seale was negligent. The court further found-that defendants failed to prove by a preponderance of the evidence that plaintiff was contributorily negligent. The court refused to make any finding on unavoidable accident.

Plaintiff perfected her appeal and brings a single point of error, under which she contends that the trial court’s judgment was so contrary to the overwhelming weight and preponderance of the evidence, on the issue of failure by Seale to keep a proper lookout as to be clearly wrong and unjust.

We will overrule the point of error and affirm judgment of the trial court.

The collision forming the basis of this suit occurred about 7 o’clock on a morning in October of 1970, either on an exit from North Interstate Highway 35 in Austin, or on the frontage road immediately north of the exit. It is undisputed that the school bus collided with the rear of the automobile driven by appellant.

Several facts concerning the accident, however, are in dispute. Mrs. Vandyke testified that the accident occurred on the exit lane. Seale, driver of the bus, testified, and report of investigation indicated, that the collision occurred on the access road, north of but near, the exit lane. The bus driver testified that the Vandyke vehicle came to an abrupt stop in front of the bus immediately prior to the accident, but appellant Vandyke denied she came to a sudden stop. Mrs. Vandyke testified that lights of her vehicle were turned on at the time of the collision, but Seale testified that lights on the Vandyke automobile were not turned on at the time the vehicles collided.

Appellant’s argument rests on the premise that the nature, place, and time of the accident, together with attending conditions of visibility, indicate so clearly improper lookout on the part of the bus driver as to be almost conclusive. This contention forms the crux of appellant’s position that the judgment was clearly wrong and unjust because contrary to the overwhelming weight and preponderance of the evidence.

When the error claimed is that the judgment is against the weight and preponderance of the evidence, this Court must consider all the evidence and will examine, weigh, and consider the entire record. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Lundstrom v. Lundstrom, 516 S.W.2d 705 (Tex.Civ.App. Corpus Christi 1974, no writ); Texas General Indemnity Co. v. Mannhalter, 290 S.W.2d 360 (Tex.Civ.App. Galveston 1956, no writ).

The trial court found that “Plaintiff [appellant] did not show by a preponderance of the evidence any negligence on the part of the defendant . . . which proximately caused the collision in question.” The trial court, as the trier of facts, was the sole judge of the credibility of the witnesses, and could believe or disbelieve any witness, in part or entirely. Redman v. Bennett, 401 S.W.2d 891 (Tex.Civ.App. Tyler 1966, no writ); Gardner v. Bailey, 376 S.W.2d 85 (Tex.Civ.App. El Paso 1964, writ ref. n. r. e.); Farr v. Bell, 460 S.W.2d 431 (Tex.Civ.App. Dallas 1970, writ ref. n. r. e.). The trial court’s findings in a nonjury case have the same presumption of conclusiveness and weight on appeal as the verdict of a jury. Redman v. Bennett, supra, and cases cited 401 S.W.2d 895.

In reviewing a record where a point of error pertains to evidence regarding lookout in a collision case, this Court is required to balance substantial evidence that supports the finding against substantial evidence that is against the finding, and then determine whether the great weight and preponderance of the evidence favors or is against the finding. Gonzalez v. Layton, 429 S.W.2d 215, 216 (Tex.Civ.App. Corpus Christi 1968, no writ); Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W.2d 933 (1958); 159 Tex. 238, 317 S.W.2d 913 (1958); Couch v. Hale, 404 S.W.2d 920, 926 (Tex.Civ.App. Corpus Christi 1966, no writ). In reviewing the entire record, the findings below must be so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. West v. Carpenter, 366 S.W.2d 826, 828 (Tex.Civ.App. Amarillo 1963, writ ref. n. r. e.).

When a motor vehicle overtakes and strikes the rear of a vehicle in front of the overtaking vehicle going in the same direction, a question of fact as to existence of negligence on the part of the overtaking driver is presented. “The collision itself is some evidence of negligence on the part of the driver who strikes a preceding car from the rear.” Renshaw v. Countess, 289 S.W.2d 621, 624 (Tex.Civ.App. Fort Worth 1956, no writ); Miller v. Wagoner, 356 S.W.2d 363, 364 (Tex.Civ.App. Austin 1962, no writ); Broussard v. Quebedeaux, 428 S.W.2d 115, 117 (Tex.Civ.App. Beaumont 1968, no writ); Hardberger v. O’Dell, 544 S.W.2d 522 (Tex.Civ.App. Austin 1976, no writ). In both Renshaw v. Countess and Miller v. Wagoner the collision occurred at an intersection, a fact situation different from the case on appeal, and in Broussard v. Quebedeaux the collision appears to have occurred at an intersection, with the principal question concerning the sudden stop of the driver in front, after a traffic control change and both cars had started up.

History of the proposition that a collision itself is some evidence of negligence may be traced to decision in Rankin v. Nash-Texas Co., 73 S.W.2d 680, 684 (Tex.Civ.App. Dallas 1934), rev’d in part, aff’d in part 129 Tex. 396, 105 S.W.2d 195 (Tex.Com.App.1937, opinion adopted). The Court of Civil Appeals said, “The collision, under ordinary circumstances, furnishes some evidence of negligent acts or omissions on the part of the driver of the trailing vehicle, which ordinarily calls upon the driver of the rear vehicle to explain and usually presents a question of fact for the determination of a jury.” 73 S.W.2d 684. The court concluded, “. . . however, [is] that the evidence . . . does not present an ordinary circumstance of the front car stopping as to raise a presumptive issue of negligence of the operator of the rear vehicle . ” because in that case the driver of the front car stopped when confronted with “the sudden and abrupt appearance of another [a third] automobile backing in” the front driver’s pathway, causing “the attendant happening, involving the” trailing automobile.

The Commission of Appeals simply stated, “The occurrence of an accident, or a collision, is not of itself evidence of negligence.” 105 S.W.2d 199. But case law subsequent to Renshaw appears to support the position that an accident itself, involving a rear-end collision occurring as one vehicle is following another in the same direction, is some evidence of negligence. Boddy v. Canteau, 441 S.W.2d 906, 912 (Tex.Civ.App. San Antonio 1969, writ ref. n. r. e.), citing both Miller v. Wagoner, supra, and Renshaw v. Countess, supra, and quoting from Renshaw; Manning v. Block, 322 S.W.2d 651 (Tex.Civ.App. Beaumont 1959, writ ref. n. r. e.), also following and citing Renshaw. The Court of Civil Appeals, in Boddy v. Canteau, observed that “the occurrence of an accident or collision is not in itself evidence of negligence.” In reliance on decision of the Commission of Appeals in Rankin v. Nash-Texas Co., but in reliance on the rule of Renshaw that court stated, “Both negligence and proximate cause may be inferred from the circumstances” in a rear-end collision 441 S.W.2d 911.

The mere occurrence, however, of a rear-end collision will not present evidence of negligence as a matter of law, and specific acts of negligence on the part of the driver of the trailing vehicle must be proved and that the act proved was a proximate cause of the collision. O’Neill v. Craig, 493 S.W.2d 898, 901 (Tex.Civ.App. Corpus Christi 1973, writ ref. n. r. e.; cert. denied, 415 U.S. 919, 94 S.Ct. 1418, 39 L.Ed.2d 474); Chapin v. Hunt, 521 S.W.2d 123, 125 (Tex.Civ.App. Beaumont 1975, writ dism’d).

In this case appellant, as plaintiff below, had the burden of proving that the bus driver failed to keep a proper lookout. Daggett v. McReynolds, 459 S.W.2d 475, 477 (Tex.Civ.App. Houston (14th) 1970, no writ). Acts of negligence must be proved and must be established as a proximate cause of the collision before the party in the lead vehicle may recover. O’Neill v. Craig, supra. Proof of negligence and proximate cause need not be by direct and positive testimony only, but may be based on inference from the circumstances of the collision. Barkley v. Dudley, 495 S.W.2d 280, 282 (Tex.Civ.App. Houston (1st) 1973, writ ref. n. r. e.). Whether it is possible to establish negligence as a matter of law, or simply to raise it as an issue, depends on the facts and circumstances of the particular case. Pacific Finance Corporation v. Rucker, 392 S.W.2d 554, 558 (Tex.Civ.App. Houston 1965, no writ); Sherwin-Williams Paint Company v. Card, 449 S.W.2d 317, 320 (Tex.Civ.App. San Antonio 1970, no writ).

In this case a fact question, as to the existence of negligence, was presented by proof that the school bus collided with the preceding automobile driven by appellant. Negligent lookout by the bus driver was an issue to be determined by the judge as trier of the facts. The trial court determined the credibility of the witnesses and assessed the weight to be given to the conflicting testimony. On appeal this Court is not authorized to substitute its judgment for that of the trial court, even though, based on the facts proved at trial, the appellate court might have reached a different conclusion. Vega v. Royal Crown Bottling Company, 526 S.W.2d 729, 736 (Tex.Civ.App. Corpus Christi 1975, no writ).

We have concluded, after examination of the entire record, that the finding of the trial court was not contrary to an overwhelming preponderance of the evidence, and that the appellant’s point of error should be overruled.

Judgment of the trial court is affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    In re Marguerite Lynn ERICKSON, Appellant.
    No. 1526.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 9, 1977.

      Patricia Anne O’Kane, Houston, for appellant.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from an order denying a change of name. Marguerite Lynn Erickson, appellant, filed an application in the district court seeking to have her married name, Erickson, changed back to her maiden name, McGregor. In her application she stated that she was unaware that she could retain her maiden name upon marriage and that she is a “feminist” who strongly believes that equality between men and women is symbolized by a retention of such party’s surname in marriage. She also stated that her profession requires her to maintain her identity separate from that of her husband. The court denied the change of name stating in its findings of fact and law that: (1) the appellant’s husband had a vested right in the subject matter of the petition and, therefore, was a necessary party; (2) the petition failed to state sufficient legal or equitable grounds for the grant; (3) there is no statutory or case law authorizing a married woman to change her name from that of her husband; and (4) to grant the change of name would give “the appearance of an illicit co-habitation against the morals of society,” that it would not be in the best interest of their minor children, and that without evidence of some advantage in her professional capacity, the grant “would be detrimental to the institution of the home and family life and contrary to the common law and customs of this state.”

An application for a change of name by an adult is controlled by sections 32.21 and 32.22 of the Texas Family Code. Section 32.21 requires that the applicant petition the district court stating the present name and address of the petitioner, the requested name, and the reason for which a change is desired. Section 32.21 does not require the spouse, or anyone else, be made a party. Section 32.22 states that “[f]or good cause shown the court shall order a change of name as requested if it finds that the change is in the interest or to the benefit of the petitioner.” Generally, the grant of an application for change of name is a matter of judicial discretion and should be granted unless there exists some wrongful, fraudulent, or capricious purpose. See Petition of Hauptly, 262 Ind. 150, 312 N.E.2d 857 (1974); In re Reben, 342 A.2d 688 (Me.1975); In re Evett’s Appeal, 392 S.W.2d 781 (Tex.Civ.App.—San Antonio 1965, writ ref’d). See generally 65 C.J.S. Names § 11(2) (1966).

In this case the record contains no evidence that any difficulties will arise from the granting of appellant’s application. She testified that her family, including her husband, had been apprised of her intention, that they were all in agreement, and that no difficulties would be created. This testimony was clear, direct, and positive, free from contradiction and as such, should have been taken as true as a matter of law. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (1942). We cannot say from the evidence as presented that to grant appellant’s request will result in “the appearance of an illicit co-habitation against the morals of society,” and be “detrimental to the institution of the home and family life,” or that it will be against the best interest of the children.

We also cannot agree with the trial court’s conclusion that appellant presented insufficient grounds to grant the request. In light of the general policy of most courts in other states to grant requests for change of name, we feel that the appellant presented sufficient “good cause” for granting her application as required by section 32.22. It is enough that for her own proper reasons, appellant conscientiously feels the necessity of being known and referred to by her previous name. To deny her this right would be a violation of equal protection under the law by creating an invalid classification based on sex. See Mercer v. Board of Trustees, North Forest Independent School Dist. 538 S.W.2d 201 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n. r. e.).

We would not like to be understood as holding that a person has the absolute right to change his name by court order. In re Evett’s Appeal, supra. Although the petitioner is ordinarily the only party before the court, the trial judge may appropriately inquire into matters, other than sex, which would authorize him to refuse to give legal sanction to a change of name. For example, inquiry may appropriately be made as to whether the petitioner has judgments against him or has been a bankrupt. A change of name may be considered inappropriate if desired for the purpose of concealing an adverse credit rating, a criminal record, or to otherwise work a fraud. Imposition by assuming the name of a celebrity or other well-known entity for commercial purposes may negate the right to a legal change of name. In short, the court may inquire into such matters as may be reasonably necessary to protect the family from disruption and the public from imposition, fraud, or improper purpose. A follower of traditional social propriety may not understand appellant’s motives in this case; however, her motives are legitimate to her, and she believes it in her “interest” and to her “benefit” to use her maiden name. It is the opinion of this court, therefore, that it was error for the trial court to deny appellant’s application for change of name. The order of the trial court is reversed, and appellant’s application for change of name is granted.

Reversed and rendered.


author: BARROW, Chief Justice.

text:
    T. L. HASTINGS d/b/a Hastings Trucking, Appellant, v. AMERICAN GENERAL INSURANCE COMPANY et al., Appellees.
    No. 15700.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 9, 1977.
    Rehearing Denied March 9, 1977.

      Thomas S. Terrell, Kerrville, for appellant.
    Barry K. Bishop, L. Parker McNeill, Clark, Thomas, Winters & Shapiro, Austin, for appellees.
   BARROW, Chief Justice.

Appellee, Allen Keller Company (Keller), was the general contractor for the construction of a section of Interstate 10 near Kerr-ville, and appellee, General American Insurance Company (Surety), was surety on its statutory payment and performance bonds given pursuant to Art. 5160, Tex.Rev.Civ. Stat.Ann. (1971). Keller had a subcontract with Mac Ramsey to place base material on the roadway. Ramsey entered into a contract in November 1974 with appellant (Hastings) whereby Hastings agreed to furnish trucks and drivers to haul the material from a stockpile to where it was needed on the roadway. On May 16, 1975, Ramsey disappeared without completing his subcontract with Keller. At that time he was overdrawn on his contract with Keller by the sum of $7,699.50 and also owed Hastings $16,819.00 for material hauled by Hastings.

This suit was filed by Hastings against Ramsey, Keller, and Surety seeking recovery for the sum of $16,819.00 plus interest and attorney’s fees. A default judgment was entered against Ramsey for the full amount of the unpaid account plus attorney’s fees. Judgment was entered against Keller and Surety jointly and severally for the sum of $2,128.40 plus attorney’s fees of $1,500.00. Hastings has perfected this appeal wherein he seeks to recover from ap-pellees the full amount of its unpaid claim as well as additional interest and attorney’s fees. In the alternative, he seeks a remand of the case because of several asserted errors in the charge of the court. Appellees complain of the judgment by several cross-points.

There is no dispute over the amount owed Hastings by Ramsey; the dispute is over the application of payments made on the account by or on behalf of Ramsey after notice of the claim had been filed by Hastings as required by Art. 516QB(b)(2). Although Hastings began work in November 1974 and had trouble getting paid almost from the outset, he did not file his statutory notice until March 28, 1975. Ramsey had no contract with Keller, and Keller’s liability, as well as that of Surety, must be based upon Hastings’ compliance with Art. 5160. It is agreed by all parties that the effective date is February 1 and that Hastings cannot recover from appellees for work or materials furnished prior to that date.

Appellees urge as a counter-point that the work done by Hastings was not within the contemplation of Art. 5160 and, therefore, a take-nothing judgment should have been entered as to them. Sec. C of Art. 5160 defines a claimant in part as follows:

[Ajnyone having direct contractual relationship with the Prime Contractor, or with a subcontractor, to perform the work or a part of the work, or to furnish labor or materials or both as a part of the work as follows:
(a) Labor is to be construed to mean labor used in the direct prosecution of the work.
(b) Material is to be construed to mean any part or all of the following:
(1) . . .
(2) •
(3) Rent at a reasonable rate and actual running repairs at a reasonable cost for construction equipment, used in the direct prosecution of the work at the project site, or reasonably required and delivered for such use.

Keller was prime contractor on a contract with the State Highway Department to construct a portion of Interstate 10. It is obvious that the roadbed is an integral part of such contract. Hastings’ contract with Ramsey required him to furnish trucks and drivers to haul the crushed rock from the stockpile to the roadbed. Hastings’ contract comes within the statutory definition of a claimant. Seldon v. S & S Aggregates Co., 441 S.W.2d 950 (Tex.Civ.App.—Eastland 1969, writ ref’d n.r.e.).

The principal question before us is whether the $18,506.60 paid to Hastings by or on behalf of Ramsey after February 1 should be credited as payment for work performed by Hastings before or after February 1. Hastings contends that the five payments made after February 1 were in payment of specific invoices for work prior to February 1 or, in any event, the payments should be credited to the earliest unpaid balance. The trial court agreed with appellees that all payments made during the statutory period should be deducted from the statutory claim.

Hastings’ ledger sheets show that the following payments were made after February 1 by or on behalf of Ramsey:

2-25 2,870.40
3-12 3,000.00
4-14 3,000.00
4-25 5,358,20
$ 18,506.60

The payment of $4,278.00 is the exact amount of Hastings’ invoice No. 1178 which is dated 1-28. There is no evidence that Keller had any knowledge of this payment, much less agreed that it be applied to a particular indebtedness. The two payments for $3,000.00 were paid on account and there was no evidence regarding application of these payments. The final payment is more complicated. Hastings testified that Ramsey gave him a “hot check” on February 20 in the amount of $5,358.20 and that when he threatened Ramsey with criminal prosecution on the check, he was given a check in that amount by Keller’s bookkeeper. The “hot check” remained in possession of Hastings and was introduced into evidence. Although it is marked “For Hauling” it is in the exact amount of the total of three invoices which were sent to Ramsey for December and January work. Keller’s bookkeeper testified that the sum of $5,358.20 was paid on behalf of Ramsey because he was owed this sum on the contract. There is no evidence that Keller agreed that its payment could be applied to work performed prior to February 1. No payments were made by Keller direct to Ramsey after the statutory notice was given by Hastings.

The general rule is that when the debtor fails to exercise his power to direct the application of a payment, the creditor ordinarily may apply the payment to any valid and subsisting claim he has against the debtor. W. E Grace Mfg. Co. v. Levin, 506 S.W.2d 580 (Tex.1974); Peden v. Carpenter, 516 S.W.2d 19 (Tex.Civ.App.—Amarillo 1974, no writ); Morgan v. Morgan, 406 S.W.2d 347 (Tex.Civ.App.—San Antonio 1966, no writ). Thus, as between Hastings and Ramsey, Hastings had the option of applying the payments to the oldest part of the account. The question before us, however, is whether this same rule applies to Keller and Surety, who are liable only as sureties for work performed after February 1. See Employers’ Liability Assur. Corp. v. Young County Lumber Co., 122 Tex. 647, 64 S.W.2d 339 (1933); Fidelity & Deposit Co. v. Big Three Welding Equip. Co., 151 Tex. 278, 249 S.W.2d 183 (1952); Bunch Electric Co. v. Tex-Craft Builders, Inc., 480 S.W.2d 42 (Tex.Civ.App.—Tyler 1972, no writ); Barfield v. Henderson, 471 S.W.2d 633 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n.r.e.).

This question was considered by the Supreme Court in Aetna Casualty & Surety Co. v. Hawn Lumber Co., 128 Tex. 296, 97 S.W.2d 460 (1936). The Court said:

It seems to be settled that when payments are made from the proceeds or fruits of the very contract, business, or transaction covered by the obligation of a surety, and when the source of the funds is known to the creditor or person receiving the same . . ., the surety equitably is entitled to have the payments applied to the discharge of the debt for which he is bound, even though application has been made by the creditor otherwise.

The rule was applied in N. O. Nelson Mfg. Co. v. Wallace, 66 S.W.2d 505 (Tex.Civ.App.—Eastland 1933, writ ref’d), wherein it was held that payments received by the creditor from proceeds of the contract could not be applied to prior debts to the detriment of the surety. Otherwise, the surety would be required to pay an old unsecured debt owing to creditor by debtor.

Appellant cites H. Richards Oil Co. v. W. S. Luckie, Inc., 391 S.W.2d 135 (Tex.Civ.App.—Austin 1965, writ ref’d n.r.e.), as authority for its contention that it had the right to apply all payments to the earliest unpaid invoices. The court there cited the well recognized rule that as between debtor and creditor, in the absence of a contrary agreement between the parties, the creditor may appropriate a payment to any debts due from the debtor. This authority is without persuasive value. The rule was stated in Luckie only by way of dictum and had clear reference to the dispute between creditor and debtor. The court was not required to determine the rights of a third party such as are involved here.

We conclude that under this rule the trial court properly applied all payments made by or on behalf of Ramsey after the statutory notice to the claim against Keller and Surety. Otherwise, they would be subject to double liability on the contract. The Legislature, through enactment of Art. 5160, gave Hastings the means to secure payment for all his work. Hastings did not avail himself of this remedy until March 28. He should not now be permitted to expose appellees to double liability by his own failure to timely file his statutory notice. Appellant’s point, seeking a judgment against appellees for the full amount of his claim against Ramsey, is overruled.

Appellant correctly points out that the evidence is undisputed as to his account with Ramsey. The trial court therefore erred in submitting Special Issue No. 5 to the jury in that such issue merely required the jury to make a mathematical calculation from the undisputed account. However, both parties concede that the jury’s calculation is correct and, therefore, reversible error is not shown by the submission of this undisputed issue to the jury.

The trial court did not err in refusing to submit appellant’s requested issues which would have inquired as to the application made by Hastings of the sums paid to him by or on behalf of Ramsey after February 1. We have held as a matter of law that, in the absence of an agreement by Keller and Surety, these payments were properly applied by the trial court to payment for work performed during the period covered by the statutory notice.

Appellant complains that the interest on the amount recovered against appel-lees was granted from date of judgment (May 25, 1976) rather than from January 1, 1976. Appellees agree that appellant was entitled to recover interest on the claim from the time the statutory notice was perfected. We will therefore reform the judgment as prayed for by appellant.

Appellees complain by a counter-point of the judgment which allows appellant the sum of $1,750.00 “in the event Plaintiff’s Counsel makes an appearance in the Court of Civil Appeals” and the additional sum of $1,500.00 “in the event Plaintiff’s Counsel makes an appearance in the Supreme Court of Texas.” The amounts were stipulated as being reasonable and appellees make no complaint as to such amounts. Appellees urge, however, that the recovery of such sums should be conditioned upon a successful prosecution of an appeal by appellant.

A similar contention was considered by the Court in King Optical v. Auto. Data Processing, etc., 542 S.W.2d 213 (Tex.Civ.App.—Waco 1976, writ ref’d n.r.e.). It was there held that an award of an attorney’s fee for appeal was improper where it was not conditioned upon whether or not appellant was successful in the appellate courts. The Supreme Court, in Liberty Sign Co. v. Newsom, 426 S.W.2d 210 (Tex.1968), approved an award for attorney’s fees in the trial court and in the appellate courts but pointed out that the claim was established. Thus, it was emphasized that the claimant had been successful on appeal.

Here the appeal by appellant has been unsuccessful with the exception of a few months interest on the sum of $2,128.40. In this situation we do not believe that appellant should be entitled to recover his attorney’s fees for his prosecution of the appeal. We accordingly reform the judgment to limit appellant’s recovery to attorney’s fees incurred in the trial court.

The judgment of the trial court is reformed to provide that T. L. Hastings, d/b/a Hastings Trucking, do have and recover of defendants, American General Insurance Company and Allen Keller Company, jointly and severally, the sum of Two Thousand, One Hundred Twenty-Eight and 40/ioo Dollars ($2,128.40), together with interest thereon from January 1, 1976 at the legal rate of Nine Percent (9%) until paid, and the sum of One Thousand Five Hundred Dollars ($1,500.00) for his attorney’s fees, together with interest thereon at the legal rate of Nine Percent (9%) from May 25, 1976 until paid. In all other respects the judgment is affirmed.

The costs of this appeal are taxed three-fourths against appellant and one-fourth against appellees, jointly and severally.

      . The jury found substantially as follows:
      That the labor of Hastings was used in direct prosecution of the work and that the reasonable value of the work performed in February and March 1975 was $20,635.00. In answer to Special Issue No. 5 it was found that the net amount owed Hastings for work performed in February and March, after deducting the amounts paid in February, March, and April, is $2,128.40.

      . The only way that a prime contractor and his surety could avoid double liability would be to withhold all payments until 36 days had elapsed to see if the statutory notice was given. This would discourage prompt payment for labor and materials.


author: WALTER, Justice.

text:
    W. L. MARTIN et al., Appellants, v. Juan BRISENO, Individually and as next friend of his minor son, Jerry Briseno, Appellees.
    No. 4952.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 10, 1977.
    Rehearing Denied March 10, 1977.
    William F. Stolhandske, Stolhandske, Simmons & Stolhandske, San Antonio, for appellants.
    A. J. Hohman, Jr., Hope, Henderson, Hohman & Georges, San Antonio, for appel-lees.
   WALTER, Justice.

Juan Briseno, individually and as next friend of his minor son, Jerry Briseno, recovered a judgment against W. L. Martin and W. L. Martin, Jr. for $526,433.78 as damages for personal injuries resulting from a one-car collision. The defendants have appealed.

The jury answered special issues as follows: (1) W. L. Martin, Jr. failed to keep a proper lookout; (2) such failure was a proximate cause of the occurrence in question; (3) W. L. Martin, Jr. was driving at an excessive rate of speed; (4) such action was a proximate cause of the occurrence in question; (5) Martin failed to properly apply his brakes; (6) such failure was a proximate cause of the occurrence in question;

“Question No. 7:
Do you find from a preponderance of the evidence that prior to the occasion of July 24, 1974, W. L. Martin, Jr. was a reckless and incompetent driver?
Answer ‘We do,’ or ‘We do not.’
We, the Jury, answer We do.
If you have answered Question No. 7 ‘We do,’ and only in that event, then answer the following question.
Question No. 8:
Do you find from a preponderance of the evidence that when W. L. Martin, Sr. permitted W. L. Martin, Jr. to drive the vehicle on July 24,1974, he knew that W. L. Martin, Jr. was a reckless and incompetent driver?
Answer, ‘We do,’ or ‘We do not.’
We, the Jury, answer We do.”

Appellants objected to the court’s charge and asserted by the submission of issue 7 and the conditional submission of issue 8 the court made a comment on the weight of the evidence. We agree.

We are of the opinion the issues should have been submitted in conformity with negligent entrustment issues set forth at § 9.02, Texas Pattern Jury Charges.

Issue 7 inquired about Martin, Jr.’s being a reckless and incompetent driver “prior to the occasion of July 24, 1974.”

Appellees say:

Clearly the aforementioned Special Issue did not expressly exclude July 24, 1974 from the jury’s consideration, but that the Issue of W. L. MARTIN, JR.’s recklessness and incompetence to operate a motor vehicle included relevant time periods prior to July 24, 1974 and encompassed those periods of time of the 24th day of July, prior and antecedent to the occasion of July 24,1974.
By the wording ‘prior to the occasion of July 24,1974,’ the jury was to consider all time spans up to and immediately preceding the moment of impact of W. L. MARTIN, JR.’s vehicle with the telephone pole.”

Appellants say:

“ . . . It is clear, that special issue No. 7 as submitted, assumes that if W. L. Martin, Jr. is found by the jury to have been a reckless and incompetent driver, prior to July 24,1974, then he was in fact, a reckless and incompetent driver on July 24, 1974, or the date in which W. L. Martin, Sr. entrusted his son with an automobile, by its very wording the issue expressly excludes July 24, 1974, as a determinative date of the alleged negligent entrustment.”

We agree the issue as submitted assumes if at any time prior to July 24, 1974 Martin, Jr. was a reckless and incompetent driver, he was such a driver on July 24, 1974, the date Martin, Sr. entrusted his son with his car.

We hold this was such a comment on the weight of the evidence as to warrant a reversal of the judgment.

Gleghorn v. City of Wichita Falls, Tex., 545 S.W.2d 446 (1976).

The judgment is reversed and the cause is remanded.


text:
    Guadalupe QUESADA, Appellant, v. Antonio D. QUESADA, Appellee.
    No. 4964.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 10, 1977.
    Jack B. Sims, Sims & Sims, San Antonio, for appellant.
    Oscar Gonzales and Marvin Zimmerman, San Antonio, for appellee.
   WALTER, Justice.

This is a divorce case. In a nonjury trial, the bonds of matrimony between Antonio D. and Guadalupe Quesada were dissolved and Guadalupe was appointed managing conservator of the four minor children of the parties. Antonio was appointed posses-sory conservator, given reasonable visiting privileges and ordered to pay $85.00 per month per child as child support.

The court partitioned the community property as follows:

To Guadalupe:
“1. Family portrait, with the understanding that Petitioner will be given an opportunity to duplicate same;
2. Cordova automobile
3. 1974 Nova automobile
4. Homestead located in Somerset, Texas which includes approximately two acres of land on which the home is situated.
5. All furniture and household goods now in her possession, with the exception of those items of furniture herein awarded to Petitioner.”
To Antonio:
“1. Retirement benefits from the San Antonio Fire Department.
2. Disability benefits, free and clear
3. 1974 pick-up
4. Twenty-eight acres adjacent to the above homestead property in Somerset, Texas
5. Furniture now in the possession of Respondent that was purchased in January of 1975 from Levitz Furniture Co. of San Antonio, Texas:
a) 1 — triple dresser
b) 1 — triple mirror
c) 2 — night stands
d) 1 — headboard
e) 1 — walnut chair
f) 1 — sofa
g) set mattress and box springs
6. Reclining lounge chair”

The cows were ordered sold and the proceeds applied to community debts and the balance divided.

Mrs. Quesada has appealed. She contends the judgment is voidable and the court erred in rendering same for the reason it does not make disposition of all the community and separate property and all the community indebtedness of the parties. She also contends the judgment is vague and indefinite and not subject to execution.

No statement of facts has been filed. In the findings of fact and conclusions of law the court finds the parties agreed to try the case without a court reporter and all property accumulated by the parties was community property. In his conclusion he finds:

“5. After considering all the circumstances and property of the parties, I find it is just, right and equitable that the property be divided in the manner set out in the Decree of Divorce.”

In Busby v. Busby, 457 S.W.2d 551 (Tex.1970), the court said:

“. . . It is well settled that where, as here, a divorce decree fails to provide for a division of community property, the husband and wife become tenants in common or joint owners thereof. Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102 (1942); Kirkwood v. Domnan, 80 Tex. 645, 16 S.W. 428 (1891). Since this property was not partitioned at the time of the divorce, we hold that the judgment entered in the divorce suit did not preclude the plaintiff from seeking a partition of the undivided community property sought to be partitioned here. Keller v. Keller, 135 Tex. 260, 141 S.W.2d 308 (1940); Kirberg v. Worrell, 44 S.W.2d 940 (Com.App.1932).” (emphasis added)

See also Clendenin v. Krock, 527 S.W.2d 471 (Tex.Civ.App.—San Antonio 1975, no writ).

In 20 Tex.Jur.2d Divorce and Separation, § 248, .it is said:

“A judgment adjudicating property rights of the spouses may be conclusive as to any claim later asserted by a spouse. But the judgment in a divorce suit does not preclude a subsequent suit to enforce property rights that were not settled therein. Thus, where items of community property are not taken into account in the division of the property, neither party is deprived of his rights therein by the division made. Any the judgment in a divorce action that does not make any partition does not, of course, bar a subsequent suit for partition.”

Mrs. Quesada is not precluded from seeking a portion of community property which was not partitioned in the divorce judgment.

We are of the opinion the description of the land awarded to the parties is not so definite and certain that it can be identified with reasonable certainty.

In Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848 (1946), the court said:

“Since the A. N. McKnight Survey contains more than 70 acres, it is quite obvious that the description in the Oklahoma judgment is not so definite and certain that the land can be identified with reasonable certainty. Nor does it refer to any writing from which such identification can be effected. Therefore, we must hold the judgment void in so far as it relates to the land involved here.”

See also U. S. Enterprises, Inc. v. Dauley, 535 S.W.2d 623 (Tex.1976) at page 628.

That portion of the judgment awarding Guadalupe Quesada approximately “2 acres” of land and awarding Antonio D. Quesada “28 acres” of land is reversed and remanded for the entry of a proper legal description of the real property awarded to the parties. In all other respects, the judgment is affirmed.


author: GUITTARD, Chief Justice.

text:
    McAX SIGN COMPANY, INC., Appellant, v. ROYAL COACH, INC. and Dunfey Family Corporation, Appellees.
    No. 19101.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 15, 1977.
    Richard G. Danner, Jr., Dallas, for appellant.
    Stephen R. Kirklin, Childs, Fortenbach, Beck & Guyton, Houston, for appellees.
   GUITTARD, Chief Justice.

Plaintiff, McAx Sign Company, Inc., appeals from a judgment on an instructed verdict for defendants, Royal Coach, Inc. and Dunfey Family Corporation. Plaintiff complains of the rulings of the trial court in excluding certain evidence and in granting defendants’ motion for instructed verdict, but it attacks only one of several grounds stated in the motion. We affirm on the ground that plaintiff has not discharged its burden to establish that the instructed verdict cannot be sustained on any of the other grounds set out in the motion and that exclusion of the evidence is not shown to be reversible error because it is not shown to be germane to any of the several independent grounds. We hold also that the trial judge did not abuse his discretion in denying plaintiff’s request for a postponement of the trial.

The suit was brought by appellant as lessor on an alleged agreement to assume the rentals payable under a written lease of an advertising sign. Defendants denied the agreement and pleaded the Statute of Frauds, Tex.Bus. & Comm.Code Ann. sec. 26.01(b)(6) (Vernon 1968), and further pleaded that plaintiff had no interest in the lease because it had been assigned to Hillside National Bank. As evidence of the alleged agreement to assume payment of the rentals, plaintiff relied on an offer and acceptance by an exchange of telegrams. Although the telegram containing the alleged acceptance was admitted without objection, it referred to terms stated in the earlier telegram, which was not produced. Secondary evidence of the contents of this earlier telegram was excluded by the trial court. Appellant complains in its first three points of the exclusion of this secondary evidence and in his fourth point complains of the instructed verdict on the ground that “there was sufficient evidence of probative value to allow the jury to consider the question of whether the Appel-lee had assumed the obligations under the written Lease Agreement.”

Appellees’ first counterpoint asserts:

Appellant has waived its right to complain of the trial court’s action in granting appellees’ motion for instructed verdict because appellant failed to attack in this appeal each and every independent ground contained in such motion.

In support of this counterpoint appellees argue that the points of error raised by appellant are germane only to two of the grounds included in the motion for instructed verdict and do not challenge the sufficiency of the other thirteen grounds. Consequently, appellees argue that appellant has failed to discharge its burden to establish that the instructed verdict cannot be supported on the other grounds stated. After this question was raised by appellees, appellant made no request for leave to amend its brief to include points and argument attacking the other grounds stated in the motion.

We agree with appellees that appellant’s first four points all relate to the matter of the alleged agreement by appel-lees to assume the rental payments, and even if well taken, they do not establish that the instructed verdict cannot be sustained on other, independent grounds. Appellant’s burden to show that the instructed verdict cannot be sustained on any of the grounds stated in the motion is established by the following cases: McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex.1964); Dunham and Ross Co. v. Stevens, 538 S.W.2d 212, 214 (Tex.Civ.App.—Waco 1976, no writ); Woodrum v. Long, 527 S.W.2d 281, 283 (Tex.Civ.App.—Austin 1975, no writ); Carrico v. Stop-N-Go Markets of Texas, Inc., 492 S.W.2d 383, 384 (Tex.Civ.App.—San Antonio 1973, no writ).

Some of the grounds stated in the motion for instructed verdict are obviously insufficient, such as general averments that “there is no evidence that warrants the submission of the case to the jury” and that “the evidence is wholly insufficient to warrant the submission of this case to the jury.” Others are more substantial, at least on the face of the motion, and several relate to the defense that plaintiff cannot recover the rentals specified in the lease because the lease has been assigned to the Hillcrest National Bank. Appellant does not attack any of these grounds either by its points of error or in the argument under its points. This court should not undertake to search the record and investigate the authorities bearing on these independent grounds without the assistance of counsel for either party. Therefore, with respect to appellant’s complaint of the instructed ver-diet, we must hold that appellant has not discharged its burden of establishing that the instructed verdict cannot be supported on any of the other grounds set out in the motion. Consequently, appellant’s fourth point is overruled.

The same principle prevents our consideration of appellant’s first three points, all of which complain of exclusion of evidence offered to establish the alleged agreement. These points do not present reversible error because even if the court erred in excluding evidence bearing on the alleged agreement, the instructed verdict would still be proper if appellees were correct in the independent ground stated in their motion that appellant had no right to recover the rentals because of the assignment to Hillside National Bank. In the absence of a showing that the instructed verdict cannot properly be sustained on this ground, appellant has failed to show that the error complained of “amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case,” as required by Tex.R.Civ.P. 434. Consequently, the first three points are likewise overruled.

The same reasoning does not apply to appellant’s fifth and sixth points, but these must be overruled for other reasons. The fifth point complains that the trial court permitted one of appellant’s counsel to withdraw from the case so near to the trial date as to require delay in the interest of justice, and the sixth complains of denial of appellant’s motion for a continuance on the ground that appellant’s new counsel was unprepared for trial and that certain witnesses were unavailable. Both of these points concern denial of appellant’s request for a postponement of the trial, which was a matter within the trial court’s discretion, and we must determine whether an abuse of discretion is shown. Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.1963).

Our review of the record reveals no abuse of discretion. Counsel who had been permitted to withdraw on April 26 re-entered the case before the trial began on May 3 and participated fully with the other counsel. Thus, any error in permitting the first counsel to withdraw appears to have been rectified in the absence of a strong and specific showing of what preparations for trial might otherwise have been made. No such showing is made either in the motion for continuance or in the motion for new trial. Appellant asserted in the motion for new trial that “certain witnesses” were unavailable at the trial, but the absence of witnesses was not stated as a ground in the motion for continuance. Obviously, therefore, the motion for continuance did not comply with Tex.R.Civ.P. 252, which requires that a motion for continuance for want of testimony must show the materiality of the testimony, that the mov-ant has used due diligence to procure the testimony, the name and address of the absent witness, and what the movant expects to prove by him. Unless all of these matters are shown specifically and by affidavit, the judge’s discretion will not be overturned. Brown v. Gage, 519 S.W.2d 190, 192 (Tex.Civ.App.—Fort Worth 1975, no writ); and see Middleton v. Vaughn, 530 S.W.2d 925, 926 (Tex.Civ.App.—Waco 1975, no writ); J. C. Penney Co. v. Duran, 479 S.W.2d 374, 380-81 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.); Davis v. National Acceptance Co., 233 S.W.2d 321, 324-25 (Tex.Civ.App.—Dallas 1950, writ ref’d n. r. e.). In view of the strict requirements laid down in these authorities, we hold that the conclusory allegations in appellant’s motion for continuance are insufficient to establish abuse of discretion.

Affirmed.