author: SPURLOCK, Justice.

text:
    Leon CHRISTIAN et al., Appellants, v. The FIRST NATIONAL BANK OF WEATHERFORD, Texas, Appellee.
    No. 17648.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 7, 1975.
    Rehearings Denied Dec. 19,1975, Jan. 16,1976.

      Prager & Vogel, and Don L. Prager, Fort Worth, for appellants.
    Fulgham, Grogan & Vick, and Mac Smith, Weatherford, for appellee.
   OPINION

SPURLOCK, Justice.

The First National Bank of Weatherford, Texas, brought an action to recover a deficiency judgment on three promissory notes alleged to have been executed by Weather-ford Equipment Company, a partnership, and its partners, Leon Christian, Earl Ellis, C. W. Webb and Calvin Reynolds. Some of the notes made the basis for the suit were secured by a lien on personal property, pledged surrender value of life insurance policies, or by accounts receivable, all of which had been repossessed and sold by the Bank prior to the bringing of this suit.

Weatherford Equipment Company operated a business in the nature of a franchise agency for a farm implement company. The defendants answered by general denial. About three years later defendants, by amended answer, plead a general denial and various offsets, credits, cross-claims and counterclaims in defense of the suit, and Leon Christian filed a cross-action against the Bank for a money judgment.

When both sides had closed, the trial court withdrew the case from the jury and rendered judgment in favor of the Bank against each of the defendants and stated to the jury his reason for rendering judgment was that all the defenses of the defendants and the cross-action of Leon Christian were barred by limitations. The cause of action against Calvin Reynolds was dismissed on motion of the plaintiff. Christian, Ellis and Webb have appealed.

The order of dismissal as to Calvin Reynolds is affirmed. The judgment against Christian, Ellis, and Webb is reversed and the cause remanded.

In summary form the record reflects that the Bank’s cause of action was based upon three notes. Note No. 1 in the principal amount of $15,000.00 is dated November 19, 1968, and is signed Weatherford Equipment Company by Earl Ellis, Leon Christian and C. W. Webb, partners; Note No. 2 in the principal sum of $5,000.00 is dated May 15, 1970, and is signed Weatherford Equipment Company by Leon Christian; Note No. 3 is dated August 24,1970, and is signed Weath-erford Equipment Company by Leon Christian. The principal sum is mentioned in the note in one place as being $8,324.89 and in another place it appears to be $8,131.76. The Bank repossessed the collateral on January 9, 1970, and shortly thereafter sold same at private sale. The Bank’s original petition was filed April 30, 1971, about four months after the repossession.

The defendants’ answers, consisting of only general denials, were filed on May 24, 1971, and May 25, 1971. The defendants filed their first amended original answer and the defendant, Leon Christian, filed a cross-action on March 5, 1974. On November 20,1974, defendants filed their amended answer detailing the matters plead in their original answer. Leon Christian also filed a cross-action on that date detailing the matters plead in his original cross-action.

Stated in summary form the defendants plead as follows: general denial; a denial under oath that the same partnership existed at the various times involved in this suit. The original partnership came into existence on November 21, 1968, and continued until March 1, 1969, when Calvin Reynolds became an additional partner. On July 11, 1969, E. R. Ellis withdrew from the partnership and Webb, Christian, and Reynolds continued the partnership until September 12,1969, when C. W. Webb left the partnership. Thereafter Christian and Reynolds were the sole remaining partners until January 21,1970, when Reynolds withdrew and a partnership was formed between Leon Christian and Jerry Hamilton which stayed in effect until June 29, 1970, when Jerry Hamilton withdrew and permanently left the state. Thereafter the business continued as a sole proprietorship owned by Leon Christian. The defendants plead that the various notes were secured by various goods, chattels and commercial paper; that on January 29, 1971, the Bank entered the place of business and took over their assets, including spare parts, farm machinery, tools, shelves, accounts receivable, records, books of account, permanent fixtures attached to the walls and structure of the building, and the value of which was not credited to the liability of the defendants; that on the date of the repossession Leon Christian was the sole proprietor and owner of the equipment and building involved.

The defendants plead that if the value of the chattels repossessed had been properly credited to their indebtedness there would be no liability but that the Bank would owe a balance to the defendants.

The answer then follows pleading in detail the various claimed credits, offsets and payments that had not been allowed, including a payment made to the Bank which the Bank applied to the debt of one of its customers instead of applying it to the debt of the defendants; that the sale of some collateral that should have been applied as a credit to Note No. 1 was applied to Notes 2 and 3, thus the Bank did not give proper credit to Webb and Ellis who had signed Note No. 1, but were not liable on Notes 2 and 3; that the Bank took property owned by John Deere Company that was in the possession of defendants on consignment resulting in that company taking judgment against two of the defendants and that the defendants had a cause of action against the Bank for indemnity and that the statute of limitations did not begin to run until Christian paid such judgment which was within the statute of limitations. Defendants further alleged two similar transactions and claimed they had the right of indemnity; and various other sums that should have been allowed as payment or credits on the note that the Bank had not allowed; the Bank repossessed some tractors and heavy equipment and gave no accounting and allowed no credit; and did not sell the repossessed property in accordance with reasonable commercial practices.

Leon Christian, by a separate instrument, plead in his cross-action that the Bank had damaged his property and taken property not covered by a lien securing payment of the notes and prayed for actual and exemplary damages.

The record reflects that the pleadings had support in the evidence, raised a fact issue, and in some instances the Bank admitted the transaction.

The defendants, by their point of error No. 1, assert the court erred in instructing the verdict on the ground that the statute of limitations barred the defendants’ defenses because said statute was not affirmatively plead by the Bank as required by Rule 94, T.R.C.P.

The court’s action in withdrawing the case from the jury and rendering judgment for the Bank will be referred to as a “directed verdict”. The pleadings of the defendants contained in their answer will be referred to as “defensive pleadings”. The action by Leon Christian contained in a separate action in which he seeks actual and exemplary damages and recovery of the overpayments made to the Bank will be referred to as a “cross-action”, although it is correctly described as a counterclaim. Rule 97, T.R.C.P.

The Bank’s answer to the defendants’ pleadings contained a general denial. In a separate paragraph of that answer the Bank plead the two and four year statutes of limitations to the cause of action plead by cross-plaintiff, Leon Christian.

The judgment recites that the plaintiff recover judgment for the balances due on the first note against Christian, Ellis and Webb, and against Leon Christian on the second and third notes. The judgment further provides that Leon Christian take nothing by his counterclaim.

The Bank caused to be included in a supplemental transcript the Bank’s Special Exceptions 1 and 2, and “Copy of Special Exceptions # 1 (without file mark) With Judges Notations.” In order to support the Bank’s contention that it had plead the statute of limitations to the defenses a document entitled “Special Exceptions” to original answer and counterclaim was included. The unsigned, unfiled copy of said pleadings contain some handwritten notes in the margin indicating that special exceptions directed to defendants’ first amended answer had been sustained or overruled.

This Court cannot consider such copy of pleadings that are unfiled and the notes in the margin not shown to have been made by the Judge.

The transcript further reflects that these special exceptions were exceptions directed to the defendants’ first amended answer and counterclaim. These defensive pleadings were abandoned when defendants thereafter filed their second amended original answer. Rule 65, T.R.C.P.

In 46 Tex.Jur.2d 46, “Pleading”, § 214, “Amendment as superseding original pleading”, it is stated: “The earlier pleading is abandoned and passes out of the case, and may not be relied on by the parties, or looked to by the courts, except that it may be looked to by an appellate court on review of the ruling allowing the amendment and on any question as to the applicability of the statute of limitations.”

It appears from the pleadings and the Bank’s motion for instructed verdict that the Bank intended to plead the Statute of Limitations to any claim that Leon Christian might have had for money judgment against the Bank as distinguished from the matters plead by the defendants in defense of the Bank’s cause of action.

Thereafter plaintiff filed special exceptions to only a portion of the pleadings of the defendants in which they claimed payments, offsets and credits on the ground that such defenses were barred by limitations. The record does not reflect that the court made any ruling on these exceptions.

Rule 94, T.R.C.P., provides in part as follows: “In pleading to a preceding pleading, a party shall set forth affirmatively . statute of limitations . . . .”

Affirmative defenses must be pleaded and proved or they are waived. Manes Const. Co., Inc. v. Wallboard Coatings Co., Inc., 497 S.W.2d 334 (Houston, Tex.Civ. App., 14th Dist., 1973, no writ hist.); Young v. J. F. Zimmerman & Sons, Inc., 434 S.W.2d 926 (Waco, Tex.Civ.App., 1968, writ dism.); Twin City Bowling Lanes, Inc. v. C. I. T. Corporation, 376 S.W.2d 94 (Forth Worth, Tex.Civ.App., 1964, no writ hist.).

We hold that the defense of the statute of limitations was not available to the Bank, among other reasons, because it was not affirmatively plead as a bar to the defendants’ defenses.

This point is sustained.

The defendants, by their points of error Nos. 3 and 4, assert the trial court erred in granting the Bank an instructed verdict on the grounds that the defendants’ defenses of offsets, credits and payments were barred by the two year statute of limitation because the statute was not applicable and the defendants were entitled to such offsets, credits and payments.

In instances where the court directs a verdict, it is the duty' of the appellate court to make a thorough examination of the entire record and consider the evidence that is favorable to the party against whom the verdict is rendered and discard all contrary evidence and inferences. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953).

This Court has carefully examined the entire record and finds that the pleadings of the defendants detailed above were amply supported by evidence in the record.

The Bank plead: All payments, credits and offsets were allowed. In support of these pleadings, during the course of the trial, the vice-president of the Bank testified that all credits and offsets that were due these men were given them pursuant to the Bank’s arrangement with them.

The defendants offered ample evidence showing that the Bank had not allowed them all the payments, credits and offsets to which they were entitled.

Southwestern Fire & Casualty Company v. Larue, 367 S.W.2d 162 (Tex.Sup., 1963) is a case in which a summary judgment was granted in behalf of the holder of a note. Judge Calvert, in a dissenting opinion, stated on page 167 as follows: “Thus if Larue had defaulted in this case, the trial court could not have rendered the judgment it did render absent production in evidence of the note and testimony showing payments and credits supporting the judgment.” (Emphasis ours.) On page 168 the court indicates that there was an issue of the correctness of the amounts sued for and this had been put in issue by a general denial. This point had not been raised in the Court of Civil Appeals and therefore the majority of the court were of the opinion it could not be considered by the Supreme Court. The above case was discussed in Texas Nat. Corp. v. United Systems Internat’l, Inc., 493 S.W.2d 738 (Tex.Sup., 1973).

In Alexander v. Houston Oil Field Material Company, 386 S.W.2d 540 (Tyler Civ.App., 1965, ref., n. r. e.), that court stated: “As in all other types of suits, a general denial in a suit upon a note puts in issue all matters pleaded by the plaintiff which are not required to be denied under oath. 9 Tex.Jur.2d 292. A general denial thus undoubtedly puts in issue allegations that the plaintiff is the owner or holder of the note, that the same is due together with the amount due and owing thereon. Proof of these matters is essential to the right of recovery. Neither the Negotiable Instruments Act nor the Rules of Civil Procedure require that any of them be denied under oath before they can be disproved. Traverse of them is not an affirmative defense to be specially pleaded under Rule 94, T.R. C.P.” (Emphasis ours.)

The defendants not only filed a general denial but also plead in great detail the various credits and payments they claim were not credited to the indebtedness.

The record is replete with testimony to the effect that valuable items were sold for very nominal sums such as $5.00 when they could have been sold to other dealers in the area for sums equal to their fair market value, less a reasonable discount; that the cash surrender value of the life insurance policies pledged to the Bank for security on Note No. 1 was credited to Notes 2 and 3 although Webb and Ellis were not liable on Notes 2 and 3; the Bank did not give the defendants credit for all of the monthly payments made on the notes; that the Bank has not accounted to the defendants for the sums received from the sale of tractors and other heavy equipment and various other credits which had not been allowed by the Bank; and that the aggregate offsets and credits amounted to $50,109.79 and that the total liability on the notes, after all monthly payments had been credited and prior to the repossession, was the sum of $24,591.13, rather than the amount alleged by the Bank.

Without engaging in an extensive discussion of the opinions of the courts relative to esoteric distinctions between the terms, “credits”, “offsets”, “payments”, “counterclaims”, “cross-action”, “recoupment”, “compensation”, “Third party claims”, “set-off”, “reconvention”, and “cross-claims”, the court is of the opinion that Rule 71, T.R.C.P., “Misnomer of Pleading”, has application and provides in effect that the courts will look to the substance of the pleadings and will consider them as if they had been properly designated. Pursuant to the intent of this rule, many of the courts have used some of these terms or a combination of them synonymously. We must look to the substance of the pleadings to determine the applicability of the statute of limitations.

In Shaw v. First State Bank, 13 S.W.2d 133 (Fort Worth, Tex.Civ.App., 1928, no writ hist.), this Court well stated the rule as follows: “Limitation is applicable to the remedy and not the right. The right, as distinguished from the remedy, is often available in equity as a defense, when the remedy for its enforcement would be barred, if they asserted affirmatively in a legal action. Fievel v. Zuber, 67 Tex. 275, 3 S.W. 273; Goldfrank, Frank & Co. v. Young, 64 Tex. 432; Smith v. Fairbanks, Morse & Co., 101 Tex. 24, 102 S.W. 908.”

The rule is again sell stated in 78 A.L.R. 1074 as follows: “The purpose of statutes of limitation is to bar actions and not to suppress or deny matters of defense, whether legal or equitable; and it is a general rule that such statutes are not applicable to defenses, but apply only where affirmative relief is sought.” This annotation cites 19 Texas cases in support of the above rule.

In Birk v. Jackson, 75 S.W.2d 918 (Eastland, Tex.Civ.App., 1934, writ dism.) plaintiff brought suit for commissions due under a contract with the defendant. The defendants, by way of cross-action, alleged a set-off in that plaintiff had converted cotton belonging to defendants and also the proceeds of certain notes which he had collected for the defendant. The acts of conversion occurred more than two years prior to the filing of the cross-action. Plaintiff contended that they were barred because of limitations. Plaintiff brought his suit one year after the alleged acts of conversion, thus defendants’ claims were not barred by limitations when plaintiff filed his suit. That court held that since defendants’ claims were not barred by limitations when plaintiff filed his suit, even though they would have been barred in an independent suit at the time defendant filed his cross-action, such defenses were not barred by limitations and the claims became offsets by operation of law.

Where there are mutual debts held by the respective parties, and the defendant’s debt is not barred by limitations at the time plaintiff’s suit is instituted, defendant may oppose his debt as an offset to plaintiff’s demand, even though it might be barred as a basis of an independent suit at the time the answer was filed. Walker v. Fearhake, 22 Tex.Civ.App. 61, 52 S.W. 629 (1899); Nelson v. San Antonio Traction Co., 107 Tex. 180, 175 S.W. 434 (1915); Stewart v. Minton, 464 S.W.2d 499 (Eastland, Tex.Civ.App., 1971, ref., n. r. e.).

In Shaw v. Faires, 165 S.W. 501 (Dallas, Tex.Civ.App., 1914, no writ hist.) that court stated: “Without attempting to discuss the fundamental reasons underlying the rule, it may be said to be settled that if, at the time the plaintiff files his suit, the defendant is the owner of a subsisting counterclaim, As contemplated by the statute, which at said time is not barred by the two years’ statute, the fact that the bar is completed before the counterclaim is urged in a proper pleading will not deprive defendant of the right to set off such counterclaim against plaintiff at any time during the progress of the suit. Such result is not true because of any suspension of limitation, but on the principle that such mutual accounts extinguish one the other pro tanto whenever plaintiff declares upon his demand. Crook et al. v. McGreal et al., 3 Tex. 487; Holliman v. Rogers, 6 Tex. 91; Walker v. Fearhake, 22 Tex.Civ.App. 61, 52 S.W. 629. But, in the application of the rule, it is also clear that, if the defendant did not assert his counterclaim until after the expiration of two years from the time of its accrual, he would not be entitled to recover thereon for any excess in his counterclaim over the plaintiff’s demand.” (Emphasis ours.)

In Machac v. Hajek, 437 S.W.2d 325 (Corpus Christi, Tex.Civ.App., 1968, ref., n. r. e.) that court stated: “It is also well settled that the statute of limitations is not applicable to matters set up strictly by way of defense. If the subject matter of the defense be of an intrinsically defensive nature, which, if given effect, will operate merely as a negation of the plaintiff’s right to recover, the statute of limitations does not apply. Morriss-Buick Co. v. Davis, 127 Tex. 41, 91 S.W.2d 313 (1936); Murphy v. Sills, 268 S.W.2d 296 (Tex.Civ.App., Beaumont, 1953, writ dism.); Texas Practice, Vol. 5, Sec. 793, page 233.”

In Preston v. Williams, 427 S.W.2d 157 (Eastland, Tex.Civ.App., 1968, no writ hist.), that court held that a counterclaim to a builder’s action on a note, by which the owner sought credit or offset because of defects in the residence built by the builder, was not an independent cause of action and was not barred by statute of limitations.

It is our opinion that the defenses of offsets, credits and payments as alleged and proved by defendants are not barred by limitation under the facts in this case.

These points are sustained.

Defendants, by their point of error No. 2, assert that the trial court erred in finding no fact question existed and withdrawing the case from the jury and granting judgment for the Bank in that the offsets and credits arising out of a non-eommercially reasonable sale established a fact question for the jury.

There is ample evidence in the record to the effect that the repossessed property was not sold in a commercially reasonable manner. There is evidence to the effect that John Deere parts repossessed by the Bank had a retail value of $16,000.00 and could have been sold to dealers in the area for $11,601.93, plus the $600.00 freight paid in having them shipped to the area in which the case was tried; these 11 boxes were sold by the Bank for $5.00 each, bringing a total of $85.00; that other parts having a value of $3,043.77 were sold for $25.00; that Weatherford Equipment Company had an inventory of approximately $40,000.00 and was allowed a credit for only a small fraction of this value; that tractors and heavy equipment repossessed had a value of $8,000.00 and defendants were not given credit for any of this value; defendants were credited with practically no sum for accounts receivable that had a value of $4,236.21; and other like items having a total value of $50,109.79.

The Bank had the duty, when it repossessed the property on which it had a lien and sold same at private sale, to sell the property in a commercially reasonable manner. In this respect it had a fiduciary relationship with the defendants to perform this duty.

In Southwestern Investment Company v. Neeley, 443 S.W.2d 573 (Fort Worth, Tex.Civ.App., 1969; Tex., 452 S.W.2d 705, remanded to the Court of Civil Appeals to determine whether or not the exemplary damages awarded were excessive; 455 S.W.2d 785, Fort Worth, Tex.Civ.App., 1970, writ dism.) this Court held that a company who repossesses property and sells same at a private sale, “. . . would stand in fiduciary relationship with the plaintiffs (referring to the mortgagors), burdened by the duties and responsibilities attendant to the trust status.” It was required “To exercise good faith and fairness with respect to the conduct and accomplishment of the sale of the property interest of its cestui que trust . . . .” The court further held that the holder of the mortgage owed the fiduciary duty to make a sincere effort to obtain a full market value upon the sale of the mortgaged property. This Court held, “That such is the legal requirement in such a case is obvious when it is noticed that if, after a private sale under a power given in the mortgage, a mortgagor can prove that the property was sold unfairly, or at an under price, he will have shown himself entitled to have the value of property sold taken at its full ‘market value’.”

We hold that it was not established as a matter of law that the property was sold at its fair market value in a reasonably commercial manner and its fair market value applied as credits on the notes. Therefore, a fact issue existed for the jury’s consideration and it was error to take the case from the jury and render verdict for the Bank under the state of the record in this case.

This point is sustained.

By their seventh point of error defendants assert that the trial court erred in directing a verdict for the additional reasons that they were not given credit for some funds belonging to them that were misapplied by the Bank.

The record shows without dispute that the Weatherford Equipment Company sold a feed machine to R. J. Smelley Company, Inc. and installed it. This customer owed the Weatherford Equipment Company $6,731.88. R. J. Smelley issued a check in that amount payable to the Weatherford Equipment Company. Jerry Hamilton, who was the last partner in the Equipment Company, owed the Bank $7,500.00 represented by his personal note. This $7,500.00 debt was in no way connected with the operation of the business of the defendants. Jerry Hamilton was planning to permanently move to another state. He took the Equipment Company check to plaintiff Bank and used it as a payment on this personal note. The Bank had full knowledge of the fact that this Equipment Company check was used to pay the personal debt of Jerry Hamilton. The defendants assert that since the Bank received the Equipment Company’s funds in cash in a liquidated sum that this sum should be applied as a payment, credit or offset on the claimed indebtedness that the defendants owed the Bank. A Bank official testified that the Bank was aware of the fact that Hamilton might leave town and that is why the Bank asked to talk to him about his note. The Bank knew the Weatherford Equipment Company check was used to make a substantial payment on this personal note. The defendants were not given credit for this payment.

In National Indemnity Co. v. Spring Branch State Bank, 162 Tex. 521, 348 S.W.2d 528 (1961), that court held that the Bank may not apply funds of another to the individual debt of the depositor if there has been no change in the bank’s position to its detriment and no superior equities have been raised in its favor. This rule applies even when the Bank has no knowledge or notice that the funds deposited to the individual debt actually belonged to another or to another legal entity.

In Vernor v. D. Sullivan & Co., 126 S.W. 641 (Tex.Civ.App., 1910, no writ hist.) that court held that the defense of payment was not barred by limitation when the money had been misapplied. In that case, the court held that the trial court could not have rendered the judgment it did render, absent production of the note and testimony showing payments and credits supporting the- judgment.

We hold that the court erred in directing a verdict and thus ruling as a matter of law that even though the above transaction was plead by the defendants and proved without dispute, nevertheless, the defendants claim of payment and therefore entitlement to credit on the note or notes was not available to defendants because of the effect of the statute of limitations.

This point is sustained.

By their fifth, sixth and seventh points of error defendants assert that the trial court erred in instructing a verdict for the Bank on the theory that the two year statute of limitations had barred the defenses as well as the cross-action of Leon Christian because in the three instances described below the defendants or Leon Christian had the right of indemnity against the Bank. Defendants further assert that limitations did not begin to run until they sustained damage and that they plead the right of indemnity within the period of limitations.

1.The John Deere Transaction

The defendants in their answer and Leon Christian in his cross-action alleged, which allegations were supported by evidence in the record, that Weatherford Equipment Company and Leon Christian had in its or his possession property owned by John Deere Company. Title to this property remained in John Deere Company under a consignment agreement. Defendants had agreed with John Deere Company to return its property to it and in pursuance to such agreement had returned to it all such property except 17 boxes of spare parts which the Bank took into its possession and sold.

Defendants assert that under these facts they had no cause of action against the Bank for conversion of this property because they did not own the property and suffered no damage. Thereafter, John Deere Company sued the defendants for the value of these spare parts the defendants had agreed to return to John Deere Company. This suit resulted in a judgment against the defendants, Weatherford Equipment Company, Leon Christian and Jerry Hamilton in the sum of $2,343.77, plus $700.00 attorney’s fees. The judgment is dated November 10, 1971. The record reflects that Leon Christian paid this judgment on October 16, 1972. The defendants’ answer and the cross-action of Leon Christian were filed on March 5, 1974, alleging these facts and seeking relief against the Bank. This pleading was filed within two years from the date the judgment was paid. Leon Christian asserts that the statute of limitations did not begin to run until he sustained damage when he paid the judgment.

2. The Merchants and Farmers Bank Transaction

Defendants and Leon Christian alleged and offered evidence to the effect that certain equipment was mortgaged to another Bank, the Merchants and Farmers Bank, and this equipment was repossessed by the plaintiff bank and that Leon Christian paid the amount of the lien to the Merchants and Farmers Bank. Under this state of facts the claim is made that the rules concerning indemnity apply.

3. The DeLaval Separator Company-Smelley Check Transaction

The defendant Leon Christian plead and proved that DeLaval Separator Company had a lien on some dairy equipment delivered to the defendants. This equipment was sold to and installed on the Smelley property, which transaction is discussed above. Smelley⅛ check to the Weatherford Equipment Company, in payment for this equipment, was wrongfully applied by the plaintiff Bank to the debt of a person not connected with the transaction.

DeLaval Separator Company retained title in the equipment until it received payment for the equipment. When the debt was not paid, it obtained judgment against Leon Christian who satisfied the judgment within two years of the filing of his cross-action.

We overrule these points.

It is our opinion that the rules of law applicable to trover and conversion, rather than indemnity, apply to the fact situation before us.

A conversion can take place even when the person in possession does not have title to the property so long as he has the right of immediate possession. In 18 Am. Jur.2d 190 (1965), “Conversion”, Sec. 53, “IV. Conditions Precedent to Recovery-Generally; title”, it is stated: “Indeed, a mere right of possession is generally regarded as an interest sufficient to maintain the action.” It is further stated in Sec. 54, “Right to possession”: “An action for conversion may be maintained by persons having the immediate right to possession of the article converted. Indeed, ordinarily, an immediate right to possession at the time of conversion is all that is required in the way of title or possession to enable the plaintiff to maintain his action.” See also McKee v. Gratz, 260 U.S. 127, 43 S.Ct. 16, 67 L.Ed. 167.

Texas follows the general rule which is stated in 14 Tex.Jur.2d 9 (1960), “Conversion”, Sec. 3, “II. Elements of Conversion— In general”: “Conversion may be committed against one who has legal possession regardless of the question of title.” See First Nat. Bank v. Brown, 85 Tex. 80, 23 S.W. 862 (1892); Cage Brothers v. Cage, 382 S.W.2d 169 (San Antonio, Tex.Civ.App., 1964, ref., n. r. e.).

The defendants suffered damage at the time of the alleged conversion even though they may not have had legal title to the property at that time. In 18 Am.Jur.2d 214 (1965), “Conversion”, Sec. 90, “Where third person owns interest”, it is stated: “A person who is entitled to bring an action for conversion although he has a limited interest in the property converted may, as against a stranger, ordinarily recover the full value of the property because in addition to his own loss he is liable over to the owner of the remaining interest, and in order to be adequately compensated must receive sufficient damages not only to compensate himself for his own loss, but also to satisfy the demands of such owner.” See also National Bank of R. of Chicago v. Wells-Jackson Corp., 358 Ill. 356, 193 N.E. 215 (1934).

It is our opinion that the rules stated above concerning indemnity do not apply to these three transactions. To that extent the points are overruled. We hold that limitation is not a bar to these matters when plead and proved as a defense to the Bank’s cause of action.

The two year statute of limitations governs an action for conversion. Art. 5526, V.A.T.S.

It is our further opinion that the two year statute of limitations does apply and bar the cross-action of Leon Christian only to the extent that he seeks a recovery of any sum in excess of the alleged debt owed the Bank..

Leon Christian, by his 8th and 9th points of error, asserts that the trial court erred in instructing a verdict against him on his cross-action because he had alleged and proved fraud and concealment on the part of the Bank which tolled the running of the statute of limitations until the cross-action was filed and that a fact issue existed which precluded the court from instructing a verdict. Leon Christian alleges the Bank unlawfully and intentionally concealed from him the amount of credit allowed defendants from the sale of the seized assets, the amount collected on the seized accounts receivable, the Bank waited 4½ years before setting the case for trial, the misapplication of the Smelley check, and the Bank concealed from him what disposition was made of the heavy equipment.

We overrule these points.

The record reflects that Smelley’s check to Weatherford Equipment Company was dated June 29, 1970, and deposited in the Bank the next day. Leon Christian testified he had learned of this about six weeks later. His cross-action was filed March 5, 1974, alleging this transaction. This defendant learned these facts more than two years before he filed his cross-action.

This Court is of the opinion that if Leon Christian had utilized the discovery procedure authorized by the Texas Rules of Civil Procedure he could have discovered the facts alleged by him as constituting fraud within two years after the happening thereof. The rule governing such acts is stated in Ellison v. McGlaun, 482 S.W.2d 304 (Amarillo, Tex.Civ.App., 1972, ref., n. r. e.): “Art. 5526 is applicable to an action for damages based on fraud, and the cause of action accrues at the time the fraud is perpetrated, unless it is concealed or is unknown to the defrauded party; but in any case limitation under the statute commences at the time the fraud is discovered, or could have been discovered by the exercise of reasonable diligence, by the defrauded party.” See also 26 Tex.Jur.2d 26 (1961), “Fraud & Deceit”, Sec. 84, “Defenses Against Assertion of Fraud, In general; Limitations.” See also Hinds v. Biggs, 142 S.W.2d 902 (Amarillo, Tex.Civ.App., 1940, no writ hist.).

In summary we dispose of all the points of error as follows:

We hold that the defenses alleged and proved by the defendants were not barred by the statute of limitations.

We hold that any credits, offsets and payments to which the defendants may be entitled, that exceed the amount of the debt to the Bank, are barred by the statute of limitations.

We hold that if Leon Christian is entitled to recover on his cross-action, he is entitled to setoff against any debt he owes the plaintiff up to, but not exceeding, the amount he is indebted to plaintiff. All sums that Leon Christian is entitled to recover on his cross-action, in excess of the amount that he owes to plaintiff, are barred by limitations and, therefore, he cannot recover any such excess sums.

That part of the judgment dismissing the Bank’s cause of action against Calvin Reynolds is severed and affirmed. The judgment against Leon Christian, Earl Ellis and C. W. Webb, is reversed and this portion of the cause of action is remanded to the trial court for another trial.

OPINION ON MOTION FOR REHEARING

For the first time on motion for rehearing the Bank raises the point and contends that the defendants are prohibited, by the terms of the Uniform Commercial Code, from raising the issue, by way of defense or partial defense, that the collateral was not sold in a commercially reasonable manner. The Bank contends that this issue can be raised only by an independent suit for damages. The Bank has cited no authorities in support of its contentions. We overrule for the reasons hereinafter set out.

The references herein made are to the Texas Business and Commerce Code annotated (Uniform Commercial Code). Part 5 of Article 9 (9.501-7) of the Uniform Commercial Code outlines the proper procedures for a secured party to follow after a debt- or’s default. Section 9.504 allows the secured party to dispose of the repossessed collateral so long as the disposition is commercially reasonable. Comment 6 to Section 9.504 repeats that the Code’s general obligation of good faith (Section 1.203) is imposed upon these parties. Section 9.507(a) states that if the collateral has been disposed of without compliance with the Uniform Commercial Code,- the debtor may recover for any losses sustained as a result of this wrongful disposition. Section 9.507(a) does not state that it is an exclusive remedy. Section 1.103 states that the Uniform Commercial Code . remedies are cumulative.

In the case of First National Bank of Bellevue v. Rose, 188 Neb. 362, 196 N.W.2d 507 (1972) the Bank sued for a deficiency judgment after having sold the collateral. The debtor had proper notice of the sale. The trial court directed a verdict for the Bank holding that the alleged inadequacy of price was an affirmative defense which could not be raised by general denial. The Nebraska Supreme Court reversed and held that since the defendant-debtor had filed a general denial and introduced evidence contradicting the secured party’s claim that the sale price equaled the fair and reasonable value of the collateral, a question of fact was presented for the jury. The effect of this holding was that the Bank was required to prove that all offsets and credits had been allowed, which necessarily implied an obligation to prove that the sale of collateral was made in a commercially reasonable manner. When defendants contradicted this evidence a jury question was presented.

As previously indicated above, remedies previously available to a debtor are not eliminated unless the Code specifically deletes them. Prior to the adoption of the Code a debtor could use a secured party’s failure to comply with the terms of the chattel mortgage and the applicable resale and repossession law as a defense or a partial defense to an action to obtain a deficiency judgment.

The remedies available to the debtor are not limited by the Code to the institution of an independent cause of action for damages under the facts in this case.

In Kolbo v. Blair, 379 S.W.2d 125 (Corpus Christi, Tex.Civ.App., 1964, ref., n. r. e.) that court had before it a suit by a creditor against his debtor to obtain a deficiency judgment after having sold the collateral. That court stated: “The appellees sought a deficiency judgment. Deficiency is that part of the secured obligation which remains after crediting it with the net proceeds accruing from a valid sale of the security by the creditor.” The court further stated the rule to be: “A prior valid sale, fairly conducted, or a determination that the property had been converted, and then a finding of the reasonable market value of such property as of the date of its conversion are the conditions precedent to the entry of a proper deficiency judgment. . . . If the value of the said property, considered as it was on said date (the date of the appropriation by the appellees), is found to be less than the debt, then the appellants should be given credit for such value, and appellees a judgment for the remaining deficiency, plus interest and attorney fees.” For a general discussion on this subject and an analysis of the decided cases see Vol. 6, No. 4, Uniform Commercial Code Law Journal, p. 344, “May a ‘Wrongdoer’ Recover a Deficiency Judgment, or Is Section 9-507(1) a Debtor’s Exclusive Remedy?”

Appellee’s motion for rehearing is overruled.

Appellants’ conditional motion for rehearing is also overruled.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Chief Justice.

license: Public Domain

text:
    Jim BOOHER, Individually, and d/b/a Booher and Associates, Appellant, v. Harold W. CRISWELL, d/b/a Harold W. Criswell and Associates, Appellee.
    No. 18693.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 13, 1975.
    H. Wayne Meachum, Green, Gilmore, Cruther, Rothpletz & Burke, Dallas, for appellant.
    Sam C. Rodehaver, Wyrick, Rodehaver & Walker, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Harold W. Criswell, d/b/a Harold W. Criswell and Associates, brought this action against Jim Booher, “individually and d/b/a Booher and Associates,” to recover on a sworn account. The trial court granted Criswell’s motion for summary judgment, and Booher appeals. We reverse and remand.

Criswell attempted to bring suit on a sworn account in compliance with Tex.R. Civ.P. 185, to recover in the sum of $2,382.87, arising from his performance at the request of appellant, of engineering consultant services. Booher’s verified answer denied liability in the capacity in which he was sued and, further, denied liability generally. Criswell moved for summary judgment and as grounds therefor alleged (1) that he had made out a prima facie case under rule 185; and (2) that Booher did not comply with rule 185 requirements for a proper denial of the sworn account; and (3) that there was no material fact issue. Booher opposed the motion for summary judgment, alleging that he was not liable, individually or d/b/a Booher and Associates, on the account since he had never contracted for or received services from Criswell in any capacity. After hearing the motion and considering the pleadings and affidavits of the parties, the trial court granted the motion and awarded judgment to Criswell for the sum of $2,382.87, together with attorney’s fees of $475, interest and costs. The court filed conclusions of law that Criswell’s action met the requirements for a suit on sworn account as defined in rule 185 and that Booher’s answer was insufficient, as a matter of law, to controvert the petition.

Appellant Booher contends that the trial court erred in granting summary judgment against him because a material issue of fact existed as to whether appellant was liable to appellee in the capacity in which he was sued. He argues that his verified denial of liability in the capacity in which he was sued was sufficient to controvert appellee’s rule 185 cause of action.

The strict requirements of denial in accordance with rule 185 do not apply to a defendant who is not liable in the capacity in which he was sued, and is thus a stranger to the transaction. In such a case, a written denial under oath as required by Tex.R. Civ.P. 93(c) is sufficient to controvert the account and to put plaintiff on proof of his claim without the aid of the presumption arising from the procedural rule 185. McCamant v. Batsell, 59 Tex. 363, 370 (1883); Hilton v. Musebeck Shoe Co., 505 S.W.2d 341, 342 (Tex.Civ.App. — Austin 1974, writ ref’d n. r. e.); Copeland v. Hunt, 434 S.W.2d 156, 158 (Tex.Civ.App. — Corpus Christi 1968, writ ref’d n. r. e.); Robertson v. Rexall Drug & Chemical Co., 410 S.W.2d 200, 201 (Tex.Civ.App. — Port Worth 1966, no writ). We agree, therefore, with appellant that his verified denial pursuant to rule 93(c) was sufficient to put the appellee on proof of his claim on the account sued upon.

Since we hold the sworn denial of capacity is sufficient to raise an issue of fact on the pleadings, we look to the summary-judgment proof presented by appellee to determine whether he has established, as a matter of law, that no material issue of fact existed. The record reveals that the only summary-judgment evidence offered by Criswell was his own affidavit in which he states that he was hired by “Jim Booher, individually and d/b/a Booher and Associates,” to perform engineering services in connection with three projects; that he performed the requested services, including all stipulations and conditions, between May 1973, and February 1974; that Booher agreed to pay what his services were reasonably worth and that they were worth the sums of money charged therefor; that Booher has refused to pay said amount and is wholly in default, damaging Criswell in the sum of $2,382.87; and that all just and legal offsets, credits and payments have been allowed. Essential elements of the cause of action alleged by Criswell are, therefore, supported only by opinion testimony, because the statement in the affidavit concerning the value of plaintiff’s services and other statements are matters of opinion. Evidence amounting to nothing more than opinions and conclusions is not sufficient to establish a cause of action as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 829 (Tex.1970). Having failed to meet his burden, we hold that Criswell has not established a cause of action as a matter of law; therefore, the trial court erred in granting summary judgment.

The judgment of the trial court is reversed, and the cause remanded to the trial court for further proceedings.


author: AKIN, Justice.

text:
    GRAYSON COUNTY STATE BANK, Appellant, v. Roy C. OSBORNE, d/b/a Osborne Air Conditioning Company, Appellee.
    No. 18702.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 13, 1975.
    Rehearing Denied Dec. 11, 1975.

      Paul Brown, Brown & Hill, Sherman, for appellant.
    C. H. Gillespie, III, Gillespie & Gillespie, Sherman, for appellee.
   AKIN, Justice.

Roy C. Osborne, d/b/a Osborne Air Conditioning Company, sued the Grayson County State Bank to recover the recited consideration for the transfer and assignment by plaintiff to the bank of a promissory note in the original amount of $61,910 secured by a mechanic’s and materialman’s lien contract. The question is whether the bank is liable for the stated consideration for the assignment of the note and lien to the extent of material furnished and work performed. A $221,160 interim construction note to the bank was simultaneously executed by the owner and secured by a deed of trust on the property. This note and deed of trust recited that they were given solely in renewal and extension of this mechanic’s and mate-rialman’s lien note and three other similar notes, the total sum of which was $221,160. The owner defaulted in his payments, and, as a result, the work was stopped. The bank then foreclosed the deed of trust on the property. Prior to foreclosure plaintiff had been paid $41,384.86 by the owner of the total $61,910 but alleged that he had not been paid $10,125.14 for materials furnished and labor performed. Plaintiff argued that the bank agreed to pay this amount as part of his consideration for assigning his note and mechanic’s lien to the bank. The bank contended that: (1) It was not contractually obligated to pay plaintiff because neither the bank nor plaintiff intended that the bank was to pay; and (2) plaintiff failed to perform conditions precedent to the payment provided in the assignment in that the work of plaintiff was not completed, had not been accepted by the owner, and all bills of plaintiff had not been paid.

In answer to special issues, the jury found that $5,614.12 would compensate plaintiff for its partial compliance with the construction contract. The jury also found that at the time of the assignment, plaintiff intended that the owner was to pay him and that the bank did not intend to pay plaintiff. Acting partially on the jury verdict and disregarding the findings on intent, the trial court rendered judgment for plaintiff against the defendant bank for $5,614.12. Defendant bank appeals. We affirm.

The parties concede that the purpose of the assignment, as well as all other documents simultaneously executed, was to give the bank a first and superior lien on the property to secure the interim construction loan. The assignment recites:

That OSBORNE AIR CONDITIONING COMPANY for and in consideration of the sum of SIXTY-ONE THOUSAND NINE HUNDRED TEN AND NO/100 DOLLARS to be paid as hereinafter stated by Grayson County State Bank . have sold, assigned and conveyed, and do by these presents, sell, assign and convey to the Grayson County State Bank the one certain promissory note, described in the foregoing and attached Mechanic’s and Materialman’s Lien Contract, together with the lien securing the same upon the premises described in the foregoing and attached Mechanic’s and Material-man’s Lien Contract, together with all improvements to be erected thereon, hereby transferring to the said purchaser all liens securing the said indebtedness, and all rights of the undersigned in and to the said premises, and all rights under the foregoing and attached contract, and hereby subrogating the said purchaser to all rights of the undersigned, under the said contract. [Emphasis added.]

Contemporaneously with this assignment, the bank took from the owner a note and deed of trust. The note recites:

This note is given in renewal and extension, but not in extinguishment, of four (4) certain promissory notes, all of even date herewith, made by Maker [owner] hereto, the first of which is payable to Lloyd Plyler Construction Company, the second of which is payable to Osborne Air Conditioning Company, the third of which is payable to George’s Glass Shop, Inc., and the fourth of which is payable to Hunter-Hayes Elevator Co., the total of said notes hereby renewed and extended being the amount of this Note and all of the four said notes hereby renewed and extended being further described in Mechanic’s Lien Contracts between Maker and said payees, all of which are of record in the Mechanic’s Lien Records of Grayson County, Texas.

The mechanic’s lien note assigned states:

This note is further secured by Deed of Trust of even date herewith, made and executed by the Maker hereof to Jerry L. Talley, Trustee, for the benefit of GRAY-SON COUNTY STATE BANK to whom the above-mentioned Mechanic’s and Ma-terialman’s Lien Contract was this day duly assigned by the said Payee [plaintiff] in consideration for the advancement of funds made, and to be made, to payee by said Assignee. Said Mechanic’s and Materialman’s Lien Contract and said Deed of Trust are hereby made a part hereof for all purposes by reference and adoption as though copied herein in full. [Emphasis added.]

This language is capable of but one construction: Any rights flowing to the bank arise solely from this assignment of plaintiff’s right to payment (in addition to the right to payment of three other contractors) under its note and construction contract. We conclude, therefore, that the bank accepted the assignment and is bound by its terms.

The bank contends that the documents contained ambiguities and through the introduction of parol evidence, sought to prove there was no intent that it was to pay plaintiff. We cannot agree because we find no ambiguity. If a contract is susceptible to more than one meaning, it is said to be ambiguous, and may be interpreted through the use of parol evidence. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951). Conversely, if a written contract is worded so that it has a certain or definite legal meaning or interpretation, it is not ambiguous and is not susceptible to modification through the introduction of parol evidence. Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977, 980 (1941); Universal C.I.T. Credit Corp. v. Daniel, supra. Moreover, the primary rule of construction of an instrument is to ascertain and give effect to the intention of the parties by the language used in the agreement. Dedier v. Grossman, 454 S.W.2d 231, 234 (Tex.Civ.App. — Dallas 1970, writ ref’d n. r. e.).

The bank argues that the language as to payment recited in the assignment conflicts with the following language in the construction contract:

. the parties of the first part [owner] hereby agree to pay to the party of the second part [plaintiff], at Grayson County State Bank, Sherman, Texas, the sum of Sixty-One Thousand Nine Hundred Ten and No/100 Dollars as follows: As evidenced by one (1) certain promissory note in the principal sum of said amount above stated, executed by parties of the first part [owner] and payable to party of the second part [plaintiff] and bearing interest at the rate of 6½ per cent per annum and payable on or before the 9th day of December, 1966, which said promissory note is incorporated herein by reference and made a part hereof for all purposes .

If this language creates an ambiguity, it is not related to the bank’s obligation to pay plaintiff. We find, however, no ambiguity. Plaintiff expressly assigned to the bank his right to receive payment from the owner of the amounts provided in the construction contract, together with his lien securing such payments, and the bank expressly agreed to pay plaintiff for those rights. We see no conflict in these provisions, and no uncertainty of meaning which would authorize the court to resort to extrinsic evidence to explain the intention of the parties, or which would raise an issue of fact for determination by the jury. We hold, therefore, that the language used in these interrelated instruments provides unambiguously for payment by the bank of the consideration for the assignment in the event of partial completion of the contract to the extent of the actual labor and materials furnished by the plaintiff.

The bank also contends that it is not liable to plaintiff because the owner had not accepted in writing plaintiff’s work and because all of the bills have not been paid. The bank argues that this is true because language in the assignment requires the plaintiff to obtain the owner’s acceptance of the work and to furnish satisfactory evidence to the bank that all bills had been paid. That language is:

Said sum agreed to be paid by the said purchaser for said note may be paid as the work upon the said improvements provided for in the foregoing contract progresses, if the said purchaser deems it safe and prudent to make such payments, but said entire amount shall be due and payable upon the completion of the said improvements, and when the undersigned shall have procured, for the said purchaser, the written acceptance of the improvements by the owners and when the undersigned shall furnish satisfactory evidence to the said purchaser that all bills or claims growing out of said building contract have been satisfied. [Emphasis added.]

We cannot agree with the bank’s construction of this language. We do not construe this language as imposing conditions precedent to plaintiff’s right of recovery of its consideration from the bank to the extent of work performed and materials furnished. This language merely sets forth when the entire amount of plaintiff’s note is due and payable. To hold, as the bank would have us do, that these are conditions precedent to partial payment would be contrary to the intent of the parties as shown by the documents as a whole. The language above quoted must be read together with the following provision, which appears in both the mechanic’s lien contract, and in the deed of trust, which was later foreclosed: “[I]n the event that the improvements should not be completed, the lien hereby established shall be binding and valid in the hands of the contractor or his assigns to the extent of the actual labor and materials . . . furnished hereunder." [Emphasis added.]

Since plaintiff assigned all his rights to the bank including his lien for partial performance as above provided, the evident intent was that the bank should pay consideration for the assignment to the extent of the lien assigned. Consequently, we cannot accept the bank’s interpretation that plaintiff, who was prevented from completing its contract by the owner’s default, would never be entitled to payment for partial performance. This construction would result in a manifest injustice that we cannot assume the parties intended.

Affirmed.


text:
    Betty Lynn STONE, Appellant, v. James C. STONE, Appellee.
    No. 18707.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 20, 1975.
    Rehearing Denied Dec. 11, 1975.
    William R. Eddleman, Carp & Eddleman, Dallas, for appellant.
    Reagan M. Martin, Linda B. Thomas, Martin, Harrison & Withers, Dallas, for ap-pellee.
   AKIN, Justice.

This is an appeal from a decree of divorce rendered on February 21, 1975. Appellee husband filed a motion to dismiss this appeal for want of jurisdiction arguing that this decree is not a final judgment because it fails to determine the amount of child support to be awarded. We agree.

The decree dissolves the marriage, appoints a conservator of the minor children, fixes visitation rights, and disposes of community property. It contains provisions concerning child support but leaves blank the amount to be paid and the date for payment. We hold that this decree is not final, and thus not appealable.

Except in instances not applicable here, such as interlocutory orders concerning venue, temporary injunctions, and re-ceiverships, an appeal may be prosecuted only from a final judgment. Tex.Rev.Civ. Stat.Ann. art. 2249 (Vernon 1971); North East Independent School Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). There may be only one final judgment in a cause. Tex.R.Civ.P. 301; Thomas v. Shult, 436 S.W.2d 194, 196 (Tex.Civ.App. — Houston [1st Dist.] 1968, no writ). To be a final judgment, the decree must dispose of all issues presented by the pleadings. North East Independent School District v. Aldridge, supra at 895-96. Since the question of child support was raised in the pleadings and the decree of February 21 did not dispose of this issue, this decree is interlocutory. State v. Starley, 413 S.W.2d 451, 458 (Tex.Civ.App. — Corpus Christi 1967, no writ). We cannot hold that the decree disposes of the child support issue by implication, since the blanks show that in this respect the decree is incomplete. Moreover, the trial court in entering this decree acted on a stipulation which recites that the parties would present evidence at a later date so that the court could determine child support. This stipulation further negates any contention that the claim for child support was denied by implication. See Puente v. Mata, 346 S.W.2d 643, 645 (Tex.Civ.App. — San Antonio 1961, writ ref d n. r. e.).

Appellee suggests in his brief that an order rendered by the trial court of August 11, 1975, is the final judgment in this cause. We cannot agree. That order determined only child support and did not incorporate the February 21 decree. Thus, although the trial court finally disposed of all of the issues, the record shows two interlocutory orders and no final judgment. Thomas v. Shult, supra.

Appeal dismissed.

      . No appeal was attempted from this order.


author: DIES, Chief Justice. KEITH, Justice

text:
    STATE HIGHWAY DEPARTMENT, Appellant, v. Ruth PINNER, a feme sole, Appellee.
    No. 7730.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 26, 1975.
    Rehearing Denied Dec. 31, 1975.

      John L. Hill, Atty. Gen., Austin, O. J. Weber, Jr., Beaumont, for appellant.
    G. I. Low, Beaumont, Joe H. Tonahill, Jasper, Bill A. Martin, Newton, for appel-lee.
   DIES, Chief Justice.

In September 1970, Jessie Pinner was driving south on Highway 87 in Newton County, Texas. At about 8 A.M., in fog, he collided with an east bound (coming from his right) Missouri Pacific train and was instantly killed. The crossing had signal lights on both sides of the highway, and both were functioning before the collision. Shortly prior thereto the Texas State Highway Department had dispatched several vehicles to this area to repair the road. These vehicles were parked on the northwest side of the crossing. None of them were on the main-traveled portion of the highway. But one of them had blinking red lights on the top, and one (a pickup) had a revolving amber light. These lights were turned on. Pinner’s widow brought suit under the Texas Tort Claims Act against the State Highway Department, and after a jury trial was given judgment in excess of $250,000 from which the Highway Department perfects this appeal.

Appellant’s Points of Error Nos. 11 through 13 (which were argued first) quite eloquently argue that the evidence convicts Pinner of negligence as a matter of law. This is a very difficult and heavy load to carry in Texas. See Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951); Texlan, Incorporated v. Freestone County, 282 S.W.2d 283 (Tex.Civ.App. — Waco 1955, no writ); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952).

“ ‘An issue of fact is raised “if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, the jury might have found in favor of the plaintiff.” ’ ” Alexander v. Appell Drilling Co., 290 S.W.2d 377, 380, 382 (Tex.Civ.App. — Waco 1956, writ ref’d n. r. e.).

As previously noted in this opinion, appellant had vehicles with lights turned on parked on the west side of the crossing. There is no proof that there was any vehicle parked on the east side of the crossing, which also had a signal. The jury found (in S.I. No. 1) that appellant had located its vehicles along the west side of the highway in such a manner as to materially obstruct Pinner’s view of the approaching train, that this was negligence, and a proximate cause of the collision. It also found (in S.I. No. 5) appellant negligent in parking and locating its dump truck and other vehicles with blinking and rotating lights thereon at and near the railroad crossing, creating confusion and distracting Pinner’s view of the signal lights and approaching train.

Mrs. Louis Johnson got to the crossing in question before the train had stopped. It was very foggy. The first thing she saw “was some highway trucks parked on the shoulder of the road and their light flashing.”

“Q. And you say they were parked even with the railroad lights?
“A. Yes, sir. You could see the railroad lights flashing but you had to be looking for them.”

She said these lights (on the highway trucks) confused and distracted her. The trucks were parked “in such a way” they obstructed the railroad signal lights.

B. J. Biscamp, a TV repairman in Newton, was driving behind. It was foggy, he saw “yellow trucks” and “it looked like one of them had a sign sticking up in the truck.” He didn’t see the railroad signal lights because of the trucks, “he imagined.” He didn’t see any lights on the trucks. Conductor Doyle was seated on the left side of the engine and saw the collision. He said “I don’t know whether these trucks prevented him [Pinner] from seeing the signal or not.”

Highway Patrolman Lambert arrived at the crossing about twenty minutes after the accident. He was asked (by appellant’s counsel), “Would the State Highway Department vehicles obstruct the view of one coming from the direction of Mr. Pin-ner?” His answer was, “Not one hundred per cent, no. . But, they shouldn’t have prevented him from seeing the light on his left,” he said. He measured the nearest highway department vehicle at seventy feet from the nearest track. He measured Pinner’s skid marks as forty-two feet. While the highway vehicle flashing light was turned off when he got there, it could be confusing when on.

Witnesses for the Highway Department established that there was a dump truck with an iron wheel roller attached, a pickup truck, a maintainer, and a tractor, with rotary boom attached. There was an amber rotating light on the pickup. The dump truck had red lights on top.

While almost all of the testimony of Mrs. Johnson and Biseamp was disputed, still this, together with the undisputed testimony of the presence of the vehicles and the lights referred to, factually support the jury’s finding in S.I. No. 1 and S.I. No. 5.

Using the test above cited in considering this summarized evidence, we cannot conclude Pinner was negligent as a matter of law. These points are overruled.

Appellant’s first point of error contends the trial court erred in refusing to render judgment for it based on jury’s answers to S.I. Nos. 13,14A, 14B, 17, and 18. In passing upon this point of error it must be kept in mind that appellant is seeking in this case to tak.e advantage of three of the four defenses provided for in Tex.Rev.Civ.Stat. Ann. art. 6701d, § 86 (1969), which reads as follows:

“Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad and shall not proceed until he can do so safely when:
“(a) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a train
“(c) A railroad engine approaching within approximately fifteen hundred (1500) feet of the highway crossing emits a signal audible from such distance and such engine by reason of its speed or nearness to such crossing is an immediate hazard;
“(d) An approaching train is plainly visible and is in hazardous proximity to such crossing.”

Subdivision (c) was submitted to the jury by S.I. Nos. 13, 14, 14A, and 14B. In its answer to S.I. No. 13 the jury found the train emitted the audible signal, but in 14 it found that the engine did not constitute an immediate hazard. The jury therefore failed to find Pinner guilty of negligence per se in that respect. Issues 14A and 14B were excuse issues connected with subdivision (c) and answers to those two issues were immaterial.

Subdivision (d) was submitted to the jury by S.I. Nos. 15, 16, 17, and 18. In answer to those issues, the jury found the train was plainly visible and in hazardous proximity to the crossing; and, that Pinner failed to stop within 50 feet, but not less than 15 feet; and that such failure was a proximate cause of this collision in question. Pinner was thereby convicted of negligence per se under Subdivision (d) which proximately caused this collision. However, in answer to 18A that Pinner could not by the exercise of ordinary care have stopped his vehicle within that distance, and in answer to 18B the jury found Pinner’s inability to stop was not caused by his own negligence.

The jury “excused” Pinner’s compliance with the statute, and the trial court did not err in refusing to render judgment for appellant. Christy v. Blades, 448 S.W.2d 107 (Tex.1969); Impson v. Structural Metals, Inc., 487 S.W.2d 694 (Tex.1972). See also Southern Pacific Company v. Castro, 493 S.W.2d 491 (Tex.1973). The jury found, in the answers to S.I. Nos. 18A and 18B, that Pinner was unable to stop by finding that he could not stop, and that his inability was not caused by his own negligence. “Inability” is a recognized “excuse” under the Restatement of Torts, and the case law as cited above. These excuse issues are supported by the same evidence quoted above in passing upon the points of error contending Pinner was negligent as a matter of law.

Appellant’s Points of Error Nos. 2, 3, 4, and 5, assert the court erred in refusing to set aside the jury’s answer to S.I. No. 12 because there was no evidence to support it; as a matter of law there was a clearly visible signal; there was insufficient evidence to support the finding, and the answer was so against the great weight and preponderance of the evidence as to be clearly wrong.

S.I. No. 12 submitted subdivision (a) under § 86 of Tex.Rev.Civ.Stat.Ann. 6701d (1969), as set out above, and the jury failed to find that a clearly visible electrical or mechanical signal gave Pinner warning of the immediate approach of the train.

Appellant’s argument here is that since all of the evidence put its vehicles on the west side of the highway, therefore, there is no evidence the light on the east side was obscured. Of course, S.I. No. 12 does not specify either side of the highway, but assuming arguendo that appellant’s contention is good, it is nevertheless immaterial. An affirmative answer to S.I. No. 12 would convict Pinner of negligence per se, but no issue as to proximate cause connected with this issue was requested or submitted to the jury. In the absence of a finding as to proximate cause, the trial court could not render judgment for appellant on the negligence issue alone. See Erwin v. Welborn, 207 S.W.2d 124, 128 (Tex.Civ.App. — Amarillo 1947, writ ref’d n. r. e.); see also Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422, 425 (1954). These points are overruled.

Appellant’s Points of Error Nos. 6, 7, 8, and 9 all refer to the jury answer to S.I. No. 14 contending that there was no evidence to support it; as a matter of law the train constituted an immediate hazard; there was insufficient evidence to support it; and the answer was so against the great weight and preponderance of the evidence as to be clearly wrong. The issue and answer follow:

“Q. Do you find from a preponderance of the evidence that such engine, by reason of its speed or nearness to the crossing on the occasion in question, constituted an immediate hazard?
“Answer: It did not constitute an immediate hazard.”

Appellant argues that since Pinner hit the engine on the crossing it had to constitute an immediate hazard. The answer to this is that S.I. No. 14 was conditioned on a “We do” answer to S.I. 13 in which the jury found that when the engine was within 1,500 feet of the crossing it emitted an audible signal. So, then clearly the jury’s finding of no hazard to S.I. No. 14 refers to the time when the engine was 1,500 feet from the crossing. These points are overruled.

Appellant’s tenth point of error urges a conflict in the answers to S.I. Nos. 14, 14A, 14B, 18A. This point is grouped in appellant’s brief with its arguments under the first nine points, and while somewhat unclear we take it appellant urges that the jury’s failure to find “excuse” in 14A conflicts with the finding of “excuse” in 18A and that this leaves appellee without an excuse and makes Pinner guilty of negligence as a matter of law. In 14A the jury failed to find that after the train constituted an immediate hazard, Pinner could not by the exercise of ordinary care have stopped within 50-15 feet of the rail. In 18A the jury found that after the train became plainly visible and in hazardous proximity, Pinner could not by the exercise of ordinary care have stopped, etc.

It is obvious to us that in 14A and 18A the jury had two different times in mind. In 14A they wrote, “Train no hazard — We do not.” Point 18A required a time when the train was “plainly visible” which 14A did not. A train could be an immediate hazard or in hazardous proximity without being plainly visible. Hence, there is no conflict in 14A and 18A. We must presume the jury did not intend to return conflicting answers. Traywick v. Goodrich, 364 S.W.2d 190 (Tex.1963). And it is our duty where possible to reconcile the jury’s answers to the issues. Producers Chemical Company v. McKay, 366 S.W.2d 220, 224 (Tex.1963); C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191,195 (Tex.1966). This point is overruled.

Appellant’s Point of Error No. 17 complains of jury misconduct in several instances. When jury misconduct is alleged it must be proved that it be material and from the record as a whole that injury probably resulted to the complaining party. J. Pope, Jury Misconduct and Harm, 12 Baylor L.Rev. 355 (1960). Tex.R.Civ.P. 327, 434, 503. See cases cited in 4 Tex.Jur.2d Part 2, App. & Err.- — Civil Cases, § 857 at 436, Note 20 at 538, and Note 5 at 536 (1974); Kittrell v. State, 382 S.W.2d 273 (Tex.Civ.App. — Dallas 1964, writ ref’d n. r. e.); State v. Cave, 430 S.W.2d 692 (Tex.Civ.App. — Austin 1968, no writ). This burden is on the one complaining of the misconduct. Fountain v. Ferguson, 441 S.W.2d 506, 507 (Tex.1969). See cases cited in 4 Tex.Jur.2d Part 2, App. & Err. — Civil Cases, § 859 at 447 and Note 20 at 454 (1974). At the hearing appellant called Phillip Dans as a witness. He testified that when the jury was discussing the amount to be awarded Mrs. Pinner he mentioned to Mrs. Martin (forewoman) that Pinner’s attorney would “get his pay out of the amount” the jury awarded. He testified the attorney’s fees were “figured up” in the amount of the recovery and, “Well, they said that they was going to give the lady enough money to pay for her and for Mr. Tonahill [her attorney].”

This constituted material misconduct. See Parris v. Jackson, 338 S.W.2d 280 (Tex.Civ.App. — Houston 1960, no writ); Texas & P. Ry. Co. v. Gillette, 125 Tex. 563, 83 S.W.2d 307 (1935); Yellow Cab & Baggage Co. v. Donnell, 159 S.W.2d 946 (Tex.Civ.App. — San Antonio 1942, no writ); St. Louis Southwestern Ry. Co. v. Smithhart, 9 S.W.2d 146 (Tex.Civ.App. — Beaumont 1928, no writ).

However, we do not believe appellant discharged its burden of showing probable harm. Juror Dans was the only juror questioned by appellant on this matter. Furthermore, this opinion later sustains points which reduce the trial court’s judgment by more than $150,000. When we consider Pinner’s age at death (51 years) his earning capacity (about $12,000 per year), the evidence as to future anticipated contributions from him to appellee, the resulting amount (after the deduction) is a sum that could not conceivably contain any amount for attorney’s fees. Appellant’s next contention under this point of error is that Juror Vaden said words to the effect that he (Vaden) was a driver’s education teacher, knew the road, and that “he figured out he [Pinner] couldn’t have been going over forty.” Juror Dans said, “[T]hat’s where I ended it [the discussion as to speed] because he’s smarter than what I am so I can’t argue with him.”

While jurors cannot receive evidence outside of the record, it must be shown that others were influenced by the remark before reversal is required. Mrs. Baird’s Bread Company v. Hearn, 157 Tex. 159, 300 S.W.2d 646 (1957). Kittrell v. State, supra. See also Warren v. Dikes, 404 S.W.2d 946 (Tex.Civ.App. — San Antonio 1966, no writ); see also, H. Wendorf, Some Views on Jury Views, 15 Baylor L.Rev. 379, 386 (1963); Tex.R.Civ.P. 327. We conclude this remark by Vaden, while certainly improper, does not require a new trial. Tex. R.Civ.P. 434. Dans was the only juror who testified as to these statements. The record reflects that with one exception (discussed herein later) Dans voted with the appellant on all applicable issues of negligence. So, certainly he was not influenced by the remark, and there is no showing that any other juror was influenced.

Finally, under this point, appellant contends the same ten jurors did not vote for liability on the pertinent special issues. Tex.R.Civ.P. 292 permits the rendition of a verdict “in any cause by the concurrence, as to each and all answers made, of the same ten members of an original jury of twelve.” (Emphasis supplied.) The issue in question here was No. 19 which inquired as to whether Pinner’s failure to stop his vehicle was the sole cause of the collision. Upon first count, the vote was 9-3 with Juror Dans voting “We do” along with the minority. As best as can be determined from the record, this was consistent with his previous votes of not imposing liability on the Highway Department. Upon recount, he stated, “I vote to make it ten. I told her [the forewoman] I’ll vote on that one to get us out of here. The issue was thus answered, ‘We do not.’ ”

We have not found any case, nor been cited any, construing this portion of the rule emphasized above. The rule clearly requires that the same ten jurors answer all of the issues. See Q. Keith, Texas Rules of Civil Procedure, 36 Tex.B.J. 401, 408 (1973). However, we conclude that as long as the same ten jurors voted for enough issues in the charge from which a judgment can be written, no reversible error is presented. This issue was unnecessary for appellee to recover. It could have been important to appellant only if ten jurors had agreed that Pinner’s failure to stop was the sole cause of the collision. Therefore, the error is harmless. Tex.R. Civ.P. 434.

The appellant has points that the court erred in not giving it credit for $15,000 on the judgment and in not giving effect to the $100,000 limit of the Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 3 (Supp.1975). The railroad had settled its case with appellee for $15,000 of which $7,500 was paid Hartford Insurance Company, Pinner’s compensation carrier. Appellant has heretofore been credited for $7,500. Appellee’s attorney in oral argument conceded this point; so it is sustained without comment.

Appellee contends appellant waived the $100,000 limit of the Tort Claims Act by not pleading and urging it. We disagree. It cannot be waived. Prior to this act there was no liability at all in tort on the part of a governmental unit. J. Greenhill & T. Murto, Governmental Immunity, 49 Tex.L.Rev. 462 (1971); McCrary v. City of Odessa, 482 S.W.2d 151 (Tex.1972). See Department of Pub. Safety v. Great S.W. Warehouses, 352 S.W.2d 493, 495 (Tex.Civ.App.— Austin 1961, writ ref’d n. r. e.).

The Legislature did not entirely abolish immunity in passing the Tort Claims Act. See Dobbins v. Texas Turnpike Authority, 496 S.W.2d 744 (Tex.Civ.App. — Texarkana 1973, writ ref’d n. r. e.). See N. Bickley, Local Government, 24 SW. L.J. 199, 200 (1970).

Furthermore, the Texas Constitution, Art. Ill, § 44, prohibits the Legislature from granting “by appropriation or otherwise, any amount of money out of the Treasury of the State, to any individual, on a claim . . . when the same shall not have been provided by pre-existing law.” Thus appellee could not recover the award of the trial court because the “pre-existing law” [Tort Claims Act] does not permit recovery above $100,000 per person. Appel-lee’s only cause of action is because of and through the Texas Tort Claims Act. She must accept its limitations along with its rights and benefits. We sustain this point of error. Appellant has other points which we either find have no merit or which we believe present no reversible error, and all points not discussed herein are overruled.

We now enter the judgment, as we reform. It is ordered, adjudged, and decreed that Ruth Pinner do have and recover of and from the Texas State Highway Department $85,000.00 with legal interest until fully and finally paid. All costs are divided one-half to each party.

Affirmed as reformed.

KEITH, Justice

(dissenting).

My dissent will be confined to two basic points: (a) the plaintiffs failed, as a matter of law, to establish any recognized excuse of the statutory violation; and (b), the jury misconduct.

Justification or Excuse

As Dean Keeton has written: “The only excuses which have been recognized by the supreme court are those listed in the Restatement of Torts:

“(a) the violation is reasonable because of the actor’s incapacity;
“(b) he neither knows nor should know of the occasion for compliance;
“(c) he is unable after reasonable diligence or care to comply;
“(d) he is confronted by an emergency not due to his own misconduct;
“(e) compliance would involve a greater risk of harm to the actor or to others.”

The Impson Rule was made applicable to the railroad grade crossing statute now under review by the decision of Southern Pacific Company v. Castro, 493 S.W.2d 491 (Tex.1973), and the method of submission was set out but was not followed here.

Justice Pope explained the application of the rule in L. M. B. Corporation v. Gurecky, 501 S.W.2d 300, 303 (Tex.1973), in this manner:

“The rule in Texas is that one who seeks to excuse a statutory violation must present some evidence of a permissible excuse for his statutory violation, whereupon the party with the burden of persuasion on negligence (plaintiff Gurecky) must obtain a jury finding that his adversary was negligent as measured by the common law or prudent man standard.”

Although it has been suggested by some that the Supreme Court has in effect abolished the doctrine of negligence per se, it has not yet receded from the five excuse or justification theories set out in Restatement § 288A.

The majority correctly recognizes the general rule that impossibility of compliance with a statute constitutes a valid excuse. The jury findings, which are referred to by the majority, indeed convict Pinner of failure to observe the requirements of Art. 6701d, § 86, Tex.Rev.Civ.Stat.Ann. (1969). Having recognized that such fact was established, I next examine the record to determine if such noncompliance was excused. Southern Pacific Company v. Castro, supra. The majority fails to set out any evidence which would raise an excuse or justification issue. Certainly by reason of Special Issue 18A the jury found that Pinner “could not by the exercise of ordinary care have stopped his vehicle . . ..” But such a reply does not establish this as fact which we can uphold without there being evidence to support it. Nor does it establish that Pinner had a legally acceptable excuse for such failure.

From my own examination of the record, I have been unable to find any evidence of probative value which would support such submission. There is nothing to indicate that Pinner either did stop or attempted to stop his car before he was within forty-five feet of the crossing. The record in fact would support a finding that Pinner was going 60 m. p. h. at the time of the collision. Nor is there a scintilla of evidence that Pinner encountered any of the excuses as enumerated in § 288A of the Restatement (2d) of Torts which our Supreme Court has adopted. Impson v. Structural Metals, Inc., supra. The absence of findings on excuse cannot be deemed as found in order to support the judgment. Southern Pacific Company v. Castro, supra (493 S.W.2d at 496).

Neither do I agree with the majority’s general conclusion: “ ‘Inability’ is a recognized ‘excuse’ under the RESTATEMENT OF TORTS.” The only subsection of § 288A which contains a form of the word “able” is (c), to which I assume the majority refers. Subsection (c) states: “he is unable after reasonable diligence or care to comply.” (emphasis supplied) By the clear language of this subsection, inability (or some extraction of that term) is an excuse only after the person has taken some measure to comply or was diligent in attempting to follow the statutory regulation. Again, there is no evidence which could be construed as permitting a deduction that Pin-ner was diligent or took care to comply with the statute in question prior to his violation thereof. It does not appear that “inability” by itself has reference to any of the other permissible excuses cited in § 288A. Certainly, as was recognized in Impson, supra (487 S.W.2d at 696), the excuses enumerated in § 288A are not exhaustive. But I do not believe that even under a liberal interpretation can it be said that “inability,” in and of itself, is a permissible excuse under our case law and the Restatement. See Comments a-j, RESTATEMENT (SECOND) OF TORTS, § 288A (1965).

There is some testimony by others that the lights on appellant’s trucks were distracting to them, but the effect of such conditions, if true, was never connected or associated with Pinner at the time of the collision. The record further does not indicate that such testimony was introduced in the posture of an excuse. I do not think this comes within the realm of “reasonable inferences” which can be made by a jury, as permitted in this State. See, e. g., Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958). A jury cannot make deductions or conclusions upon circumstances of which there is no evidence for the findings must be within the range of testimony and supported by the evidence. Great American Insurance Company v. Lang, 416 S.W.2d 541, 550 (Tex.Civ.App. — Austin 1967, writ ref’d n. r. e.). Nor do I think this constitutes “some evidence” produced by the ap-pellees to which Justice Pope referred in Castro (493 S.W.2d at 498), for I am not making reference to the burden of persuasion but to the fact that one seeking mitigation of a statutory violation must present some evidence of the nature of the excuse. L. M. B. Corporation v. Gurecky, supra (501 S.W.2d at 303).

As acknowledged by Justice Walker in his concurrence in Castro, we are dealing with a statute which requires strict observance and the violation of which cannot ordinarily and readily be determined by laymen by the mere resort to common knowledge. It thus becomes even more important that evidence as to excuses be manifested and put into issue before the trier of fact. Any claimed excuse must fall within the limited classes of the statute and case law. Impson v. Structural Metals, Inc., supra.

When the record is void of any evidence, this determination becomes impossible not only for the trier of fact but also in the context of a review by an appellate court. Appellee failed to present any evidence of excuse in accordance with the standards laid down in L. M. B. Corporation v. Gurecky, supra; Impson v. Structural Metals, Inc., supra, and Southern Pacific Company v. Castro, supra. Without any such supporting evidence, I would reverse the trial court’s judgment and remand the case for new trial.

Jury Misconduct

Turning now to the jury misconduct, I find that the majority correctly states the crux of the jury discussion on attorney’s fees. The record also reflects that after Juror Dans said that Pinner’s attorney would “get his pay out of the amount” that they awarded, the other jurors stated that they knew this. As noted in the majority, this was more than “mere discussion,” and I do not believe that the jurisprudence of this State permits the conclusion that it was harmless. There was no admonition by any member of the jury that this discussion was inappropriate.

While generally the effect of improper conversations may be cured by instructions or admonitions from other jurors, Ausley v. Johnston, 450 S.W.2d 351, 355 (Tex.Civ.App. —El Paso 1970, writ ref’d n. r. e.); Pittman v. Baladez, 304 S.W.2d 601 (Tex.Civ.App.— Austin 1957), rev’d on other grounds, 158 Tex. 372, 312 S.W.2d 210 (1958), it has been held by our highest court that an admonition by a foreman to jurors discussing attorney’s fees is not sufficient to cure the harm. White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200 (1947); Texas Employers Ins. Ass’n v. Hatton, 152 Tex. 199, 255 S.W.2d 848 (1953).

A discussion of awarding attorney’s fees is not an immaterial issue. When such consideration is given in a particular case, it directly affects and necessarily alters the award which is to be given the plaintiff. The mere mention of the percentage that an attorney is to collect as his fee has been held to be reversible error; the rights of the defendant in such instances are materially prejudiced. Texas & P. Ry. Co. v. Gillette, 125 Tex. 563, 83 S.W.2d 307 (1935). Every case cited by the majority on misconduct as to attorney’s fees holds that reversible error was committed when a jury discussed attorney fees, and those cases deal with fact situations which are certainly less thorough and less harmful than in the instant case. See also, Central Power & Light Company v. Freeman, 431 S.W.2d 897 (Tex.Civ.App. — Corpus Christi 1968, writ ref’d n. r. e.).

It cannot be overlooked that Phillip Dans’ testimony was uncontroverted at the hearing for jury misconduct. Where a witness’ testimony was not impeached, a court is not free to ignore his statements. St. Louis Southwestern Ry. Co. v. Smithhart, 9 S.W.2d 146 (Tex.Civ.App. — Beaumont 1928, no writ); Rodman Supply Company v. Jones, 370 S.W.2d 951 (Tex.Civ.App.— Amarillo 1963, no writ).

I do not concur in the majority’s rationale that the age and earnings of Pinner mitigate or sanitize this improper discussion. No case has been found which relies upon such reasoning and such reasoning is immaterial to the issue in question. Further, I do not understand that it is of consequence that the court has reduced plaintiff’s award by over $150,000. The majority merely did what the Tort Claims Act required; i. e., placed a maximum limit of $100,000 for an individual’s recovery under the terms of the Act. By establishing this recovery at the absolute upper level permitted by legislation, the majority has exacted no “penalty” for the jury’s improper discussion. It has completely vitiated and ignored any amounts which the jury assigned as attorney’s fees.

This is not the intended result of our case law. It is no answer to the question of attorney’s fees to state that a “remittitur” can cure any harm which may have been committed. Where, as here, no determination can be made as to any definite sums which were awarded as attorney’s fees by the jury, a remittitur cannot cure the erroneous effect of the discussion of the fees. City of Waco v. Darnell, 35 S.W.2d 134 (Tex.Comm’n App.1931, holdings approved); Houston Sports Association, Inc. v. Russell, 450 S.W.2d 741 (Tex.Civ.App. — Houston [14th Dist.] 1970, writ ref’d n. r. e.). There is no evidence as to any amounts which the jury assigned as attorney’s fees. Thus, any consideration of a remittitur or reduction in the award is not only inapplicable but also immaterial.

The discussion of attorney’s fees was pri- or to the time when the jury decided upon the amount of compensation to be awarded to the plaintiff. Where such a discussion takes place before a figure has been reached, it cannot be said that misconduct was not prejudicial to the appellant (defendant) and requires a new trial. See, e. g., Yellow Cab & Baggage Co. v. Donnell, 159 S.W.2d 946 (Tex.Civ.App. — San Antonio 1942, no writ); St. Louis Southwestern Ry. Co. v. Smithhart, supra.

The next ground of misconduct is the remarks made by Juror Vaden as to the speed that Pinner was traveling at the time of the accident. Phillip Dans testified, again uncontroverted, that Vaden questioned the trial evidence that Pinner was going 60 m. p. h. when he collided with the train. When reminded by Dans that that was the evidence in the case, Vaden replied that he was a driver’s education teacher and was familiar with the road and that “he couldn’t have been going over forty.” At the hearing, Dans stated he was a former pupil of Vaden and that no one questioned Vaden’s conclusion and that “that’s where I ended it [the discussion as to speed] because he’s smarter than what I am so I can’t argue with him.”

I do not take issue with the principles cited by the majority governing their disposition of this question. I think it is clear, however, that a juror was influenced by the above mentioned remark. Dans positively stated that the reason he did not pursue the fact that Pinner was going 60 m. p. h. was the fact that he considered Vaden smarter than he and that he could not argue with such intelligence. It is not dispositive to say that because Dans voted with the minority on the negligence issues, the effect on the influenced juror was “harmless.” Such logic involves deductive reasoning as to what the jurors thought, and we are not permitted to inquire into the mental processes of the jury. City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259 (1944). The test is whether, upon review of the record as a whole, “injury probably resulted.” Tex.R.Civ.P. 327; Fountain v. Ferguson, 441 S.W.2d 506 (Tex.1969). Considering the record as a whole, the jury was influenced by an improper remark which probably caused the rendition of an erroneous verdict. See Rodman Supply Company v. Jones, supra (370 S.W.2d 953), where it was held that the “clocking” of the approach to the scene of the accident in issue by a juror was reversible error as being influential evidence outside of the record.

Both grounds of misconduct discussed above were such that a new trial should be ordered upon each ground. But, even if it could be concluded that by themselves reversible error has not been shown, certainly the cumulative effect of the misconduct requires reversal. See Scoggins v. Curtiss & Taylor, 148 Tex. 15, 219 S.W.2d 451 (1949); Sims v. McKnight, 420 S.W.2d 173 (Tex.Civ.App. — Houston [14th Dist.] 1967, writ ref’d n. r. e.), and cases cited therein.

I would reverse the judgment of the trial court and remand the case for a new trial.

      . P. Keeton, “Torts,” 28 SW. L.J. 1, 2 (1974). The reference is to RESTATEMENT (SECOND) OF TORTS § 288A (1965), and the Supreme Court case referred to is Impson v. Structural Metals, Inc., 487 S.W.2d 694, 696 (Tex.1972), where the Court adopted this section of the Restatement as its guide. Two scholars have written: “This case [Impson ] defines the general principles that control legally acceptable excuses and justifications.” L. Green and A. Smith, “Negligence Law, No-Fault, and Jury Trial —III,” 51 TEXAS L.REV. 207, 214 fn. 17 (1973).

      . Associate Justice Steakley, joined by Justices Walker and Johnson dissenting in Gu-recky, supra; Justice Steakley dissenting in Sparkman v. State, 519 S.W.2d 852, 858 (Tex. 1975).

      . I note, contrary to the form of submission suggested in both Castro and Gurecky, supra, the trial court placed the burden of proof upon the plaintiff; whereas, under the rationale of these cases, such burden rested upon the defendant.