606 S.W.2d 49 | Tex. App. | 1980
OPINION
This is an appeal by plaintiff Edwards d/b/a City Body Shop from take nothing judgment in suit against defendant Cliff Industries for $1245.72 repair bill on an automobile belonging to Billie Hubbard.
Plaintiff Edwards sued defendants Cliff Industries and Billie Hubbard alleging it was employed by defendants to repair the automobile of Billie Hubbard; that Cliff Industries represented to plaintiff it was liable to Hubbard for the amount of damages suffered by Hubbard’s vehicle in an automobile accident between Hubbard’s vehicle and a vehicle owned by Cliff Industries; that Cliff Industries represented to plaintiff that Hubbard had been authorized by it to have her vehicle repaired by plaintiff; that Cliff Industries and Hubbard both promised plaintiff that upon completion of the repairs on the vehicle plaintiff would receive payment; that repairs of $1245.72 were made on the vehicle; the vehicle delivered to Hubbard; but no payment was made.
Cliff Industries answered denying that any of its employees agreed with plaintiff to fix Hubbard’s vehicle or that it authorized Hubbard to enter an agreement on its behalf; that one of its employees had a motor vehicle accident with Mrs. Hubbard; that the Hubbard claim had not been settled and no court had determined liability of same; that Mrs. Hubbard without consent of Cliff Industries took her vehicle to plaintiff for repair; that if repairs were made it was done without knowledge or consent of Cliff.
Defendant Hubbard was not served.
The trial court filed Findings and Conclusions summarized as follows:
Findings of Fact
1) Co-defendant, Mrs. Billie Hubbard, has never been served.
2) Mrs. Hubbard took an automobile to plaintiff for repair.
3) The cost of repair was $1,245.72 which was a fair and reasonable amount.
4) Plaintiff released the vehicle to Mrs. Hubbard prior to receiving payment.
5) Mrs. Hubbard has not paid for the repairs and plaintiff cannot locate her.
6) Plaintiff contacted Cliff Industries after the vehicle was released and demanded payment.
7) Cliff Industries advised plaintiff to contact its insurance company.
8) $350. would be reasonable attorney’s fee for plaintiff’s attorney if liability had been established.
Conclusions of Law
1) Plaintiff failed to prove that Cliff Industries was liable for repair of Mrs. Hubbard’s vehicle.
2) Plaintiff failed to prove that Cliff Industries was responsible for labor and services he had provided Mrs. Hubbard.
3) Plaintiff failed to prove the vehicle was repaired based on reliance that he would be paid by Cliff Industries.
There were only two witnesses, Mr. Meeks and plaintiff.
Mr. Meeks, traffic manager of Cliff Industries, testified that it was reported to him that one of Cliff’s vehicles was involved in a collision with a vehicle owned by Mrs. Hubbard; that a man from City Body Shop came to his office “to see what insurance company is to file-how to get his money to see what he could get in damage for Hubbard’s car”; that Mrs. Hubbard came to his office to “try to get her car fixed” and “make a claim in regards to damage to her car caused by one of Cliff Industries’ trucks”; that she said her car was at plaintiff’s business being repaired; that plaintiff asked who was going to pay for the repairs to Mrs. Hubbard’s car- that plaintiff was told he would have to get a complete release from Mrs. Hubbard and turn it in to the INA Insurance Company; that when plaintiff came to his office the work on the car had been completed.
Plaintiff Edwards testified he owns and operates City Body Shop; that Mrs. Hubbard brought her car to him for repair; that she came because “one of Cliff Industries’ trucks had hit her rear end”; that he gave her an estimate of $1,245.72 to fix the car; that such estimate was fair and reasonable to make necessary repairs to the car; that he telephoned Cliff Industries to get a verification on what Mrs. Hubbard had told him about repairing the car; that the response of the representative of Cliff Industries (whom he cannot identify) was “to go ahead and fix the car and send him the bill”; that this was before he fixed the car; that based on that representation he “went ahead and repaired the car”; that upon completion of repairs to the car he took the bill to Cliff Industries and talked to Mr. Meeks; that Mr. Meeks told him “it would have to go to their insurance company, and that they would pay for the damages, and this was the first time anything was mentioned about an insurance company”; that “he took it for granted” that Cliff Industries would pay for the repairs so he delivered the car to Mrs. Hubbard; that Mrs. Hubbard has never paid anything; that he had already turned the car over to Mrs. Hubbard before he chatted with someone he could identify at Cliff Industries-that he normally doesn’t deliver a car he has repaired until it is paid for, but “a company like this, they tell you they are going to do something, I figured they would do it. They assured me I would get my money. Go ahead and repair the car”; that Mrs. Hubbard has left town and cannot be found; that the insurance adjuster came out and allowed nine hundred and some odd
Plaintiff appeals on 3 points.
Point 1 complains the trial court erred in making finding # 6 “that plaintiff contacted defendant after the vehicle was released and demanded payment” since such is not material and controlling and is supported by “no evidence”; and point 2 complains the trial court erred in making finding # 7 “that defendant advised plaintiff to contact its insurance company” since such is not material and controlling and is supported by “no evidence”.
There is evidence to support both findings, and whether same are material or controlling does not constitute reversible error. The record does not show that plaintiff requested any additional findings.
Point 3 complains there is no evidence to support the conclusions of law and that the trial court erred in entering them. The trial court concluded plaintiff failed to prove that Cliff Industries was liable for the repairs of Mrs. Hubbard’s vehicle and that plaintiff failed to prove the vehicle was repaired based on reliance that plaintiff would be paid by Cliff Industries.
Plaintiff testified that he telephoned Cliff Industries and talked with someone he could not identify, and that person told him to go ahead and fix Mrs. Hubbard’s car and send him the bill; that based on such representations he repaired the car.
Mr. Meeks of Cliff Industries, the only other witness, testified he talked with plaintiff in person after the vehicle was repaired and that he told plaintiff a release would have to be secured and turned in to the insurance company.
It was the province of the trial judge to weigh all of the evidence and to decide what credence should be given to the whole or any part of the testimony of each witness; he was the judge of the facts proved and of the inferences to be drawn therefrom. Redd v. Riedel, Tex.Civ.App. (Waco), 586 S.W.2d 653, NWH; Burt v. Lochausen, Tex., 249 S.W.2d 194.
Apparently the trial judge failed to believe plaintiff’s testimony that he had a telephone conversation with an unnamed employee of Cliff Industries prior to fixing the vehicle, and that unnamed employee told him to go ahead and fix the car and send him the bill.
The plaintiff failed to carry his burden of proof.
All plaintiff’s points are overruled.
AFFIRMED.
