Nagelson v. Fair Park Nat. Bank

• Decision Date: 03 November 1961
• Docket Number: No. 15873,15873
• Citation: 351 S.W.2d 925
• Parties: Fred NAGELSON, Appellant, v. FAIR PARK NATIONAL BANK, Appellee.
• Court: Texas Court of Appeals

Page 925

351 S.W.2d 925

Fred NAGELSON, Appellant, v. FAIR PARK NATIONAL BANK, Appellee.

No. 15873.

Court of Civil Appeals of Texas, Dallas.

Nov. 3, 1961.

Rehearing Denied Dec. 1, 1961.

Woodgate, Richards & McElhaney, John H. McElhaney, Dallas, for appellant.

Strasburger, Price, Kelton, Miller & Martin and Royal H. Brin, Jr., Dallas, for appellee.

DIXON, Chief Justice.

Appellant Fred Nagelson brought this suit against Fair Park National Bank, Charley P. White and Tony Burrescia for damages for an assault and battery committed on appellant by White and Burrescia, who were attempting to repossess an automobile upon which the Bank held a chattel mortgage. White and Burrescia are partners in a used car business under the name of Big Wheel Motor Company. Nagelson is the operator of an automobile service station.

The Bank filed a motion for summary judgment. The court severed appellant's cause of action against the Bank from his cause of action against White and Burrescia. Thereafter the Bank's motion for summary judgment was sustained and judgment was accordingly entered that appellant Nagelson take nothing against Fair Park National Bank.

Herman Moore, an employee of appellant Nagelson, purchased an automobile from Big Wheel Motor Company, and as part of the purchase price executed an installment note and mortgage. The note and mortgage were transferred and assigned by Big Wheel Motor Company to Fair Park National Bank.

Some time later appellant Nagelson sold a set of tires to his employee Moore. These tires were put on the automobile purchased by Moore, replacing the old tires which were on the car at the time of its purchase by Moore from Big Wheel Motor Company.

Moore became delinquent in his payments to the Bank. The Bank, which had right of recourse under the terms of the endorsement to the Bank of Moore's paper, notified Big Wheel Motor Company that Moore was delinquent in his payments.

Soon thereafter White and Burrescia set about to repossess the automobile from Moore. Moore was willing to relinquish the car, but upon learning of the imminent repossession, Nagelson placed the car on an elevated grease rack and started removing the new tires in order to replace them with the old tires which were on the car at the time of the sale by White and Burrescia. While Nagelson and Moore were so engaged White and Burrescia arrived on the scene. A controversy arose over the tires. Nagelson claimed the tires belonged to him. A fight took place. White and Burrescia repossessed the automobile together with the tires which were the subject of the dispute. Nagelson thereafter filed this suit for damages for assault and battery.

Marvin Hickman, Assistant Vice-President of the Bank, in an affidavit explained how Herman Moore's note and mortgage were handled so far as the Bank was concerned. When Big Wheel Motor Company sell an automobile the Bank carries their dealer paper, that is, the Bank discounts the loans made to Big Wheel Motor Company's individual buyers. If the purchaser of an automobile fails to make his payments, the Bank, pursuant to its right of recourse, simply takes the unpaid balance out of the Big Wheel Motor Company's reserve account which is set up for that purpose. Big Wheel Motor Company, that is White and Burrescia, then take whatever steps they choose to minimize their loss because of the default. This procedure was followed in the case of Herman Moore. When Herman Moore became delinquent in his payments, White and Burrescia, the partners operating Big Wheel Motor Company, were notified by the Bank, and the indebtedness still owing from Herman Moore was charged against the reserve account of Big Wheel Motor Company.

Hickman further stated in his affidavit that he did not in any way tell White and Burrescia to repossess the automobile purchased by Moore; that he alone at the Bank handled the Big Wheel account; that he did not know until some time later that they had repossessed the car; that he never instructed or inferred that White and Burrescia should repossess the car; and that none of the officers and employees of the Bank have any control over White and Burrescia in their buying, selling, trading or repossessing of automobiles.

Charley White and Toney Burrescia, in affidavits also attached to the Bank's motion for summary judgment, corroborated the statements made by Hickman, in his affidavit. They said their transfers and assignments to the Bank of automobile notes and mortgages were always made with recourse against them. When the Bank informed them that Moore was delinquent, they took it upon themselves to go and get the car back so they could sell it and get what money they could out of the car; and that the Bank never instructed, suggested or in any way inferred that they should repossess the automobile bought by Moore. They further swore that neither of them had ever worked for the Bank in any capacity; that the Bank has no ownership or control over their business; that no officer or employee at the Bank tells them how to run their affairs; and that to their knowledge no one at the Bank knew of the repossession of Moore's car until after it had been completed.

Opinion

In his brief appellant Nagelson presents one point on appeal. He asserts that the court erred in rendering summary judgment absolving the Bank from liability for the tort committed by persons repossessing an automobile upon which the Bank was the only lien holder, especially when appellant had answered the motion for summary judgment with controverting affidavits tending to prove that the tort-feasors were acting in the interest of the Bank, as its agents, and raising genuine issues of fact material to such issue.

Appellant filed only one controverting affidavit and it is fatally defective. It does not show, as provided by Rule 166-A(e) Texas Rules of Civil Procedure, that it is made on personal knowledge and does not affirmatively show that affiant is competent to testify to the matters stated therein. Lawyers Surety Corp. v. Sevier, Tex.Civ.App., 342 S.W.2d 604; Gaston v. Copeland, Tex.Civ.App., 335 S.W.2d 406; Duffard v. City of Corpus Christi, Tex.Civ.App., 332 S.W.2d 447; Page v. Pan American Pet. Corp., Tex.Civ.App., 327 S.W.2d 469; Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396.

The controverting instrument was signed by one of appellant's attorneys who merely swore that 'the facts contained in the foregoing pleadings are true and correct to the best of his knowledge and belief.' In 2 C.J.S. Affidavits Sec. 26 page 981 it is recognized that affidavits on information and belief are sometimes sufficient. But the text further says, 'However, the averments must be direct and positive and not on information and belief if the statute which provides for the making of the affidavit expressly requires the facts to be positively stated * * *.' Texas decisions are in accord with the rule as above quoted. St. Paul Fire & Marine Ins. Co. v. Earnest, Tex.Civ.App., 293 S.W. 677 (Syls. 26 & 27); Scudder v. Burrus Mill & Elevator Co., Tex.Civ.App., 285 S.W. 681; Graves v. M. Griffin O'Neil & Sons, Tex.Civ.App., 189 S.W. 778; Abilene Ind. Tel. & Tel. Co. v. Southwestern Tel. & Tel. Co., Tex.Civ.App., 185 S.W. 356; Smith v. Banks, Tex.Civ.App., 152 S.W. 449; Moss v. Whitson, Tex.Civ.App., 130 S.W. 1034; Missouri K. & T. Ry. of Texas v. Pietzsch, 10 Tex.Civ.App. 572, 30 S.W. 1083; Spinks v. Matthews, 80 Tex. 373, 15 S.W. 1101; Graham v. McCarty, 69 Tex. 323, 7 S.W. 342; 2 Tex.Jur.2d 416.

The purported controverting affidavit is defective for other reasons. Appellant in his controverting plea refers to, relies on and quotes at length from an alleged oral deposition of Marvin Hickman. But no oral deposition is included in the record which is before us in this appeal.

Appellant also quotes from the alleged testimony of White and Burrescia. But there is no transcript of this alleged testimony in the record and no signature of a court reporter or notary public authenticating the alleged testimony. In a supplemental brief appellant states that this quoted testimony is from a transcript of the testimony of White and Burrescia given at a criminal hearing, upon charges of assault and battery.

Though we have confidence in the integrity of the attorney who made the controverting affidavit, the quotations from the alleged depositions and testimony, unauthenticated as they are, amount to no more than hearsay from outside the record, therefore cannot be given effect as testimony. Riggs v. Bartlett, Tex.Civ.App., 310 S.W.2d 690, 693; Westfall v. Lorenzo Gin Co., Tex.Civ.App., 287 S.W.2d 551; Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832; Savage v. Herrin Transfer & Warehouse Co., Tex.Civ.App., 219 S.W.2d 101, 103; Missouri K. & T. Ry. Co. v. Pietzsch, Tex.Civ.App., 30 S.W. 1083; 2 Tex.Jur.2d 418. In its original brief appellee asserts, and the assertion is not denied by appellant, that the transcript of the alleged testimony of White and Burrescia was not even a part of the record before the trial judge.

In its motion for summary judgment appellee says that its plea is based on 'the pleadings and the depositions on file, together with the affidavits attached hereto, * * *'. In its brief appellee says that the oral depositions of appellant Nagelson were taken and were a part of the record before the trial judge when he sustained the motion for summary judgment. This statement is not denied by appellant. The record before us on this appeal does not contain the oral depositions of appellant Nagelson.

From what we have said it is apparent that the record presented by appellant on appeal is not the complete record which was before the trial court. Appellant says that it is not necessary for him to bring up the entire record. We could agree if it were conclusively shown by the partial record before us that a question of fact exists in the case. But the contrary is true. So far as the partial record shows, no question of fact...