Incorporated Carriers, Ltd. v. Crocker, 9011
| Decision Date | 31 August 1982 |
| Docket Number | No. 9011,9011 |
| Citation | 639 S.W.2d 338 |
| Parties | INCORPORATED CARRIERS, LTD., Brooks International, Inc., World Wide Rentals and Microtron Industries, Inc., Appellants, v. Clyde CROCKER, Jr., Appellee. |
| Court | Texas Court of Appeals |
Blair D. Dishman, Jr., Barnes, Hoecker & Dishman, Dallas, for appellants.
H. C. McCracken, Jr., McCracken, Shields & Taylor, Carrollton, for appellee.
Appellee, Clyde Crocker, Jr., instituted this suit for damages for an alleged breach of a contract against appellants, Incorporated Carriers, Ltd. (hereafter ICL), Brooks International, Inc., World Wide Rentals (hereafter WWR), and Microtron Industries, Inc. ICL, a division of Brooks International, Inc., is a certified carrier operating under the authority of the Interstate Commerce Commission. WWR, a division of Microtron Industries, Inc., is generally in the business of leasing equipment.
On May 16, 1979, Appellee Crocker entered into a "motor vehicle lease" with WWR under which he received a 1970 International truck/tractor. That same day, Crocker entered into a "tractor lease agreement" with ICL. The ICL contract provided that Crocker would lease his truck/tractor to ICL, would operate the truck/tractor under ICL's Interstate Commerce Commission permit and haul ICL's freight in an ICL trailer.
The lease with WWR was for a term of 18 months, with monthly rental payments of $675.00. The agreement provided that Crocker would pay for the truck's operating expenses, including the costs of maintenance and repair. Other significant terms were: Paragraph 4 which provided that Crocker would acknowledge "that the vehicle is in good condition and repair" by accepting delivery of the vehicle; Paragraph 7 and 8 containing the tie-in with ICL and providing that the WWR lease would terminate if Crocker ceased hauling for ICL; and Paragraph 10 requiring that Crocker put up a $2,050.00 security deposit which would be refunded if ICL terminated its contract with Crocker "without good cause."
The agreement between Crocker and ICL set out the rate of Crocker's compensation and the expenses for which the parties were obligated. Crocker agreed to maintain and repair the vehicle at his own expense. ICL promised to provide the trailer and pay for its repairs.
Crocker knew the truck/tractor was old when he leased it. Prior to the lease he test drove the vehicle and had it inspected by a mechanic of his choice. A list of the truck's problems was made and presented to the lessor. Some of the defects were corrected before the contracts were entered into and the first dispatch made.
Crocker was on the road in the truck for ICL for approximately three weeks during which he claims to have logged 9,000 miles. He returned to the ICL terminal in Irving on or about June 11, 1979, and orally terminated the lease and turned in the trailer on June 11 or 13. On June 18, 1979, his attorney mailed WWR and ICL letters giving them notice of his termination of the lease contracts. The truck was returned on June 25, 1979.
This suit was filed on November 16, 1979, alleging that the "defendants refused to fulfill their agreement with the plaintiff, breached the lease agreements, and without just cause made it impossible for plaintiff to operate the motor tractor as required." The case was tried to a jury and in response to submitted special issues, the jury found that the appellants wrongfully terminated the lease on June 11, 1979, and that Crocker was entitled to recover the following: $2,050.00 for the security deposit; $971.50 for lease charges withheld from his account after the contract was terminated; and $440.77 in charges for permits and decals withheld after the date of termination.
Appellants now assert that the jury's answer to the issues should be disregarded and/or it was error for the issues to be submitted as there was no evidence or insufficient evidence to support the answers.
A proper predicate was not made in the trial court for this Court to consider the "no evidence" point. The proper predicate for a legal insufficiency point is either a motion for an instructed verdict, an objection to the submission of a vital fact issue, a motion to disregard a jury finding, a motion for judgment non obstante veredicto, or a motion for a new trial that distinctly raises the "no evidence" points. Rosas v. Shafer, 415 S.W.2d 889 (Tex.1967); Ward v. Shriro Corporation, 579 S.W.2d 257 (Tex.Civ.App.--Dallas 1978, no writ); Calvert, "No Evidence" and ...
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...(citing Gunter Hotel of San Antonio Inc. v. Buck , 775 S.W.2d 689, 697 (Tex. App.—San Antonio 1989, writ denied) ; Incorporated Carriers, Ltd. v. Crocker , 639 S.W.2d 338, 340 (Tex. App.—Texarkana 1982, no writ) ; Howell v. Kelly , 534 S.W.2d 737, 740 (Tex. App.—Houston [1st Dist.] 1976, no......
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...able to comply but has a valid excuse for his nonperformance; and (3) the defendant's breach of the contract. See Incorporated Carriers, Ltd. v. Crocker, 639 S.W.2d 338, 340 (Tex.App.—Texarkana 1982, no writ) ; Howell v. Kelly, 534 S.W.2d 737, 740 (Tex.Civ.App.—Houston [1st Dist.] 1976, no ......
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...evidence rule is a rule of substantive law, and testimony admitted in violation of that rule cannot be considered. Incorporated Carriers, Ltd. v. Crocker, 639 S.W.2d 338, 341 (Tex.App.--Texarkana 1982, no writ); Piper Stiles & Ladd v. Fidelity & Deposit Co. of Maryland, 435 S.W.2d 934, 940 ......
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