STORY SERVICES INC. v. RAMIREZ

OSBORN, Chief Justice.

This appeal is from a judgment, based upon a jury verdict, awarding damages for personal injuries and a death resulting from a vehicle collision between a car driven by the Appellee, Nestor Ramirez, Jr., and a van owned by the Appellant. We reverse and render.

On July 25, 1989, Nestor Ramirez, Jr. was driving a vehicle in which his mother was a passenger. Their car was struck by a Dodge van which was traveling the wrong way on a one-way street at a high rate of speed. Mr. Ramirez received serious injuries and his mother received injuries which resulted in her death six days later. The van had been reported to the police as stolen from the Story Dodge sales lot about 9:10 p.m. the night before the accident. It was being driven by a person identified as Steven Watson who was arrested on a charge of involuntary manslaughter. He was not indicted for either theft or unauthorized use of the van.

There was a dispute as to when and how Watson obtained possession of the van. The Appellees argued the case before this Court on the theory that the van had been loaned out and left the sales lot with permission from Story Dodge. The Appellant contended throughout the trial and before this Court that the van had been stolen and that Watson did not have permission or consent from Story Dodge to drive the vehicle at any time.

By its verdict, the jury found (1) that Story Dodge negligently entrusted the van to Steven Watson, (2) that the negligence of Steven Watson proximately caused the occurrence in question, (3) that the acts or omissions of Story Dodge which resulted in the vehicle being driven from the premises were negligence, (4) that such negligence was a proximate cause of the occurrence in question, and (5) damages of Nestor Ramirez, Sr. resulting from the death of his wife, $60,000, (6) damages of Luz H. Lira resulting from the death of her mother, $25,000, (7) damages of Nestor Ramirez, Jr. resulting from the death of his mother, $17,000, (8) damages for Gloria Ramirez, $67,172.75 and, (9) damages of Nestor Ramirez, Jr. for his injuries, $97,000.

In the first two points of error, the Appellant contends that there is no evidence and insufficient evidence to support the jury's answer to Question No. 1 (negligent entrustment). In Williams v. Steves Industries, Inc., 699 S.W.2d 570 (Tex. 1985), the Court said:

The elements of negligent entrustment are: (1) entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the owner knew or should have known to be unlicensed, incompetent, or reckless; (4) that the driver was negligent on the occasion in question; and (5) that the driver's negligence proximately caused the accident.

699 S.W.2d at 571.

No question is raised about elements 4 and 5. Clearly, the driver was negligent and that negligence was a proximate cause of the accident. There are questions about the sufficiency of the evidence to establish the first three elements.

In determining a "no evidence" point of error, we consider only the evidence and inferences which tend to support the verdict and disregard all evidence and inferences to the contrary. Stafford v. Stafford, 726 S.W.2d 14 (Tex. 1987); Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965). In determining an "insufficient evidence" point of error, we consider all the evidence, both that in support of and that contrary to the finding, to determine if the challenged finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

If we determine that the verdict is against the great weight and preponderance of the evidence, we must detail the evidence and the reasons which force that conclusion. Pool v. Ford Motor Co. The Appellees relied primarily upon two witnesses to prove that the vehicle left the Story Dodge sales lot with permission of the owner. First, Lorenzo Martinez testified that he had been employed with the El Paso Police Department for over sixteen years with more than seven years as a detective in auto theft. He was assigned on July 26 to investigate the van which had been reported as stolen the night before. He took a written statement from the sales manager which indicated the van had been noticed as missing as the lot was being closed on the evening of the 24th. No one saw the van when it was driven away. On the 28th, he inspected the wrecked van and it had the keys in the ignition with the key code ring. He said usually the key code ring, from which other keys can be made, is kept under lock and key in the dealer's office. The van had a dealer's tag which is used for demonstration purposes when a vehicle is driven off the lot. He talked to Steven Watson at the hospital and he denied having stolen the vehicle or having driven it. Watson told the detective he was living in Juarez. He said Watson had been arrested many times for auto theft and other types of thefts and fraud. When asked if the vehicle with the set of keys and key code ring and paper tag attached was initially driven with permission, he answered, "It's possible." He said the Department of Public Safety had no record of a driver's license for Steven Watson,

but acknowledged that no check was made for a license from Juarez, where Watson said he lived, or from New Mexico or California, where he had been arrested. On cross-examination, he said he did not know if Watson was licensed or unlicensed at the time. He also testified that his investigation never uncovered any evidence that this vehicle was anything but stolen, and that no evidence was ever uncovered that consent was given for anyone to drive this vehicle from Story Dodge.

The other principal witness was Alfredo Bonilla, a private investigator, who had worked for the Police Department for twenty-four years. He saw the van in the wrecker yard on July 31. Over objection, he testified that in his opinion, permission was given to take the vehicle from the car lot. This was based upon (1) the time the vehicle was reported stolen, (late in the evening which appeared that somebody was waiting for the vehicle to be returned), (2) the vehicle had demonstrator plates (which are used when a person has permission to drive a vehicle from the lot), and (3) the vehicle had keys and the coded key ring (which would normally have to be provided by sales personnel to a customer). He concluded that the vehicle had been loaned to Steven Watson.

The Appellees also put on evidence, by deposition or live testimony from seven witnesses who had worked for Story Dodge in July 1989. Gerald Hayes, the general manager, said the sales manager, Silver Zubia, learned the van was gone when he locked up for the evening. He said no one "turned it loose that day". He said the company had seven vehicles stolen in three years, three of which were taken while being driven by a sales person. Angelo Parker, a salesman, had no knowledge who took the van, but thought it had been missing on Saturday rather than Monday when it was reported to the police. Jeff Fargason, a salesman, saw the van on the lot on the 24th, but had no personal knowledge of how it came to be missing. Steve Brown, worked an early shift and was not on the lot at closing time. He knew the battery was dead in the afternoon and someone was looking for jumper cables. Argelia Jaurequi noticed the van missing between seven and eight o'clock on the evening of the 24th. She had shown the van to a customer on that date and the battery was dead. She got the keys and, using jumper cables to the next van, started the van and left it running to charge the battery. Her testimony was:

Q. What time would you guess that you showed the customer the car?

A. Right about between 7:00 and 8:00.

Q. And what did you do? You left the keys in the car, and then the car was driven off? Is that what happened?

A. Right.

She estimated that she left the van running from thirty to forty-five minutes before she noticed it was missing. The call to the police was about thirty minutes later.

William Boggs, Jr. worked the morning shift on the 24th and he remembered seeing the van that morning. He had no personal knowledge how the van was taken. He said most cars on the lot had paper tags on them.

Silverio Zubia, Jr. was the sales manager and he called the police to report the van stolen on July 24. He said all the vehicles had paper tags in order to demonstrate the vehicles. He saw the vehicle on Monday and said that nobody had loaned it out to a customer. He had no knowledge how the van was taken from the lot. He testified they would never loan a vehicle to a customer that was unlicensed.

There was also evidence that many cars are stolen in El Paso and most are immediately driven to Juarez. About 5,000 were stolen in 1989 and 5 percent of those were from dealerships. Very few of those are involved in an accident. Officer Conner could only recall two stolen vehicles being in accidents in the past year and a half.

We conclude that the jury finding of negligent entrustment is in part against the great weight and preponderance of the evidence and clearly wrong and in part has no evidence to support the finding.

Officer Martinez said it was possible the vehicle was driven with permission. That evidence alone would not establish the first element, i.e., entrustment by the owner. Alfredo Bonilla was of the opinion the car was driven with permission of the owner and had been loaned to Watson. That evidence raised a fact issue as to entrustment by the owner. But, the Appellees' other witnesses all contradicted Bonilla's opinion. Gerald Hayes said the vehicle was not turned loose that day. Argelia Jaurequi said the van was taken while the battery was being charged. Silverio Zubia said the van had not been loaned out to a customer. The person driving the van at the time of the accident had a long record of stealing vehicles. It is testimony from Appellees' own witnesses which make the finding against the great weight and preponderance of the evidence. See Crawford Co. v. Garcia, 817 S.W.2d 98 (Tex.App. — El Paso 1991, writ denied).

Even if permission had been granted to Watson to drive the van, there is no evidence that he was unlicensed and that Story Dodge knew that he was unlicensed. Officer Martinez testified:

Q. You don't know whether Mr. Watson was licensed or unlicensed?

A. At the time, no, I don't.

Q. Well, you don't know that today for a fact, do you?

A. No.

Q. And you certainly never told anyone at Story Dodge that he was licensed or unlicensed?

A. No, sir, I didn't.

David Conner, a sergeant with the El Paso Police Department auto theft section, who assisted in the booking of Watson and some investigation testified:

Q. You don't have any information in your investigation of this case as to whether or not whoever took that car off the lot on July 24th had a license or didn't have a license?

A. No, sir.

Silverio Zubia testified as a witness for the Appellees that he would never loan a vehicle to a customer that was unlicensed. The evidence reflected that Watson was a resident of Juarez, Mexico but no attempt was made to determine if he had a driver's license in Mexico. He had an arrest record in New Mexico, but no attempt was made to see if he had a license from that state. The burden of proof was upon the Appellees on this issue and the only proof was that Watson did not have a Texas license. In a city which borders on Mexico and is located less than ten miles from New Mexico, many drivers are on the streets every day with no Texas license. But we do not assume that they are unlicensed drivers. There is no contention that Story Dodge knew or should have known at the time the vehicle was allegedly entrusted to Watson that he was unlicensed, incompetent, or reckless and no evidence was offered to establish that fact. There was no proof to establish the third element of the cause of action. Points of Error Nos. One and Two are sustained.

In the next two points of error, the Appellant contends that there is no evidence and insufficient evidence to support the jury's answer to Question No. 3 (negligence). The evidence established that prior to the van being missing from the sales lot, the keys had been placed in the switch, the motor started, and the vehicle left running for at least half an hour. The clear inference from the evidence is that the vehicle was left unattended since no one saw who drove the vehicle from the lot and no one knew just when the vehicle disappeared. Although there was testimony that there was a rail between where the van was parked and the street, the van could be backed up and driven out one of two exits from the sales lot. In her testimony, Argelia Jaurequi acknowledged that she should have stayed by the van while it was running, but she said she never thought anybody was going to come by and decide to take it. The evidence is both legally and factually sufficient to support the answer to Question No. 3 as to negligence. Points of Error Nos. Three and Four are overruled.

The Appellant next contends that there is no evidence and insufficient evidence to support the jury's answer to Question No. 4 finding the negligence was a proximate cause. The two elements of proximate cause are cause in fact and foreseeability. Farley v. M M Cattle Co., 529 S.W.2d 751 (Tex. 1975); Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951). Justice Smedley in the Hopson opinion quotes from Prosser, who wrote that if liability is limited to foreseeable consequences, "the consequences must be a normal, substantial part of the risk, which a reasonable man would recognize as fairly to be taken into account by the defendant at the time of his act." Id. at 356. That opinion also notes that it is not necessary to reasonably anticipate the exact nature of the plaintiff's injury or the precise manner of its infliction.

We will initially pass on the legal insufficiency issue and then pass on the factual insufficiency issue. Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex. 1981).

In Parker and Parker Constr. Co. v. Morris, 346 S.W.2d 922 (Tex.Civ.App. — El Paso 1961, writ ref'd n.r.e.), this Court held that the operation of a vehicle by one without authority to do so is an unforeseeable intervening cause of a third party's injuries, preventing liability on the part of the vehicle's owner. That holding was the basis for the decision in Williamson v. Wayne Strand Pontiac-GMC, Inc., 658 S.W.2d 263 (Tex.App. — Corpus Christi 1983, writ ref'd n.r.e.). In that case, the appellee left the key in the ignition of a car parked on its lot. The car was stolen and the appellant sustained personal injuries when he hit that vehicle. The Court affirmed a judgment non obstante veredicto on the basis that leaving the key in the ignition of a vehicle which was stolen was not a proximate cause of the plaintiff's injuries. More recently, in Wolf v. Friedman Steel Sales, Inc., 717 S.W.2d 669 (Tex.App. — Texarkana 1986, writ ref'd n.r.e.), the Court noted that courts have held generally that theft and subsequent negligent operations are not the reasonably foreseeable risk of leaving a car unattended with the key in the ignition. See also McKinney v. Chambers, 347 S.W.2d 30 (Tex.Civ.App. — Texarkana 1961, no writ) and Lollis v. Humble Oil Refining Company, 285 S.W.2d 249 (Tex.Civ.App. — El Paso 1955, writ ref'd n.r.e.).

Just last year in Simmons v. Flores, 838 S.W.2d 287 (Tex.App. — Texarkana 1992, writ denied), Chief Justice Cornelius, writing for a majority of the Texarkana Court, affirmed a summary judgment denying recovery in a case where the defendant parked her car and left the ignition keys inside the vehicle. The car was taken without her knowledge or consent from a private parking lot. The Court followed the rule that "Generally, a person who leaves the keys in a car will not be liable for damage caused by one who steals the car." Id. at 288. In that case, Justice Bleil wrote a dissenting opinion. He concluded that a person of ordinary care would have foreseen that someone might start the car and cause damage or injury to another person. Even with the dissent in a summary judgment case, the writ was denied.

The Court in Garvey v. Vawter, 805 S.W.2d 601 (Tex.App. — Beaumont 1991, no writ) remanded for a trial a case with similar facts, but that is a summary judgment case with a burden of proof on the defendant unlike one where the case has been tried to a fact finder with the burden on the plaintiff. And as shown by the Court's first opinion, no supporting affidavits were filed to meet the burden of proof. Garvey v. Vawter, 774 S.W.2d 86 (Tex.App. — Beaumont 1989), rev'd, 786 S.W.2d 263 (Tex. 1990). In another summary judgment case, Finnigan v. Blanco County, 670 S.W.2d 313 (Tex.App. — Austin 1984, no writ), the stolen vehicle was parked with the motor running four or five feet away from the fence of the jail yard and stolen by an escaped prisoner. Both the facts and the burden of proof in the summary judgment proceeding make that case distinguishable from this case.

The four cases where the Supreme Court chose not to grant a writ, all announced the same rule. As noted in the Wolf opinion, a prior cause cannot be made the basis for an action for damages if it does nothing more than furnish the condition or give rise to the occasion which makes the injury possible, if such injury is the result of some other cause which reasonable minds would not have anticipated, even though the injury would not have occurred but for such condition. The Texarkana case in 1992 indicates that what this Court said in the Morris case in 1961 is still the law, it applies to vehicles with the keys in the vehicle and the issue should be decided as a matter of law. To hold otherwise means that one whose negligence results in their car being stolen anywhere in El Paso, where many cars are stolen, is an insurer for the damages of a person injured by a thief who is a reckless or incompetent driver. Point of Error No. Five is sustained.

We also conclude that the finding on the issue of foreseeability is against the great weight and preponderance of the evidence and clearly wrong and unjust. Alfredo Bonilla testified as follows:

Q. [A]ssume for a moment that it was left running, and someone came walking down the street, jumped into it, a thief. And is it foreseeable that that thief might wreck the vehicle in attempting to get it to Mexico, or elude police officers, or whatever?

A. Yes, sir, very conceivable.

The problem with that hypothetical question is that there was never any proof of the facts assumed, i.e., that the vehicle was being driven to Mexico or to elude police officers. Bonilla also testified on cross-examination that the accident was not foreseeable if the vehicle was stolen, but was foreseeable if the vehicle was loaned. The Appellees also called as their witness Sergeant David Conner, a police officer in the auto theft section, who testified on this issue as follows:

Q. And you don't believe that Story Dodge could foresee that 17 hours after this car was taken off the lot, that this individual, in a drunken stupor, would have been going the wrong way on a one-way street, do you?

A. I don't see any way that they could have foreseen that.

Officer Conner's opinion is certainly consistent with his testimony that he knew of only two accidents out of what would be more than 6,500 cars stolen in the last year and a half. Can anyone foresee an event which occurs 0.003 percent of the time?

In addition, the Appellant presented the testimony of Robert Shane, a law professor, who testified that the accident was not a foreseeable consequence of the actions of Story Dodge. He said, "the accident of which complaint was made was not reasonably foreseeable by Story Dodge." Also, Joe Garcia, an investigator who worked for the El Paso Police Department for twelve years, testified that Story Dodge could not have reasonably foreseen that this accident would occur after the theft the day before.

Three witnesses, including one called by the Appellees, testified the accident was not foreseeable. Another witness testified it was foreseeable under certain conditions and those conditions were never established. The jury answer was not based upon a preponderance of the evidence. Point of Error No. Six is sustained.

The last point of error asserts the trial court erred in permitting Alfredo Bonilla to testify regarding the ultimate issues of permissive use, negligence, and foreseeability. TEX.R.CIV.EVID. 704 provides:

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

With regard to testimony by experts, TEX.R.CIV.EVID. 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education, may testify thereto in the form of an opinion or otherwise.

It is contended that Mr. Bonilla did not possess any skill or other qualification to justify his opinion in this case. Expert testimony should be admitted only when it will aid the jury in making inferences regarding the fact issues more effectively. Thompson v. Mayes, 707 S.W.2d 951 (Tex.App. — Eastland 1986, writ ref'd n.r.e.). When the jury is equally competent to form an opinion regarding ultimate fact issues, the expert's testimony as to those issues may be excluded. Lopez v. City Towing Assoc. Inc., 754 S.W.2d 254 (Tex.App. — San Antonio 1988, writ denied). It is error to admit opinion evidence on an issue where no specialized or technical knowledge is necessary. Borden Inc. v. De La Rosa, 825 S.W.2d 710 (Tex.App. — Corpus Christi 1991), vacated, 831 S.W.2d 304 (Tex. 1992).

In this case, we need not reach the issue of whether the opinion of an expert was needed and whether Bonilla had the necessary qualification. Errors in admitting evidence will not require reversal unless that evidence controlled the judgment. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226 (Tex. 1990). Giving the Appellees the benefit of Bonilla's opinion, the evidence will not support a judgment for the Appellees. No harm is shown. Point of Error No. Seven is overruled.

The judgment of the trial court is reversed and judgment rendered for the Appellant.

OSBORN, Chief Justice.

OSBORN, Chief Justice.

The Appellees have filed a Motion for Rehearing with eight points of error which attack each of the holdings of the Court in its original opinion 863 S.W.2d at 494. That Motion raises a procedural issue that the Court must address. The issue was not raised in their Reply Brief filed prior to the Court's opinion in this case, but now for the first time in the Motion for Rehearing, it is argued that the "no evidence" points have not been properly preserved. The Motion does not urge, although it should, that the judgment of the trial court cannot be rendered if the issue has not been properly raised.

The courts of this state have long recognized four procedures for raising a "no evidence" issue which, if sustained on appeal, can serve as the basis for a reversal and rendition of an adverse trial court judgment. Those procedural steps are (1) a motion for instructed verdict, (2) an objection to the submission of a vital fact issue, (3) a Rule 301 motion to disregard the jury's answer to a question, or (4) a Rule 301 motion for judgment notwithstanding the verdict. R. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX.L.REV. 361 (1960); M. Osborn, Avoiding the pitfalls of appellate practice, 10 TEXAS TRIAL LAWYERS FORUM 50 (1975); Hardy v. C.P.I. Sales, Inc., 511 S.W.2d 89 (Tex.Civ.App. — Houston [1st Dist.] 1974, no writ).

At the time of the decision in Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960), a complaint about the overruling of the first two complaints could only be preserved if noted in a motion for new trial. That is no longer required under Rule 324, Texas Rules of Civil Procedure.

In this case, the Appellees made a motion for an instructed verdict at the close of the plaintiffs' case. The motion was overruled and the defendant-appellant presented evidence and did not renew the motion at the close of all the evidence. This results in a waiver of the motion for instructed verdict. Horizon Properties Corp. v. Martinez, 513 S.W.2d 264 (Tex.Civ.App. — El Paso 1974, writ ref'd n.r.e.). That motion being the only basis for a rendition point of error, judgment should not be rendered for the Appellant on appeal.

We do note that a "no evidence" point can be raised without any procedural steps prior to the appeal, but if sustained, the case can only be remanded. In Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821 (Tex. 1985), Justice Kilgarlin said that a no evidence point must be preserved through one of the above four steps or by filing a motion for new trial. That holding was repeated in Steves Sash Door Co., Inc. v. Ceco Corp., 751 S.W.2d 473 (Tex. 1988). That is clearly not required today under the language in Rule 324. See First American Title Co. of El Paso v. Prata, 783 S.W.2d 697, 702 n. 1 (Tex.App. — El Paso 1989, writ denied). Today Rule 324 requires a motion for new trial to raise a factual insufficiency point of error. To include a similar requirement for a legal insufficiency point of error would require an amendment to the rule. We conclude that Aero Energy, Inc. and Steves Sash Door Co. are no longer authority for the propositions stated in those opinions.

This procedural issue is complicated by the fact that the Appellees never in the Appellees' Brief pointed out this procedural defect in the issues raised by the Appellant. This Court faced a similar situation in Thomas v. Morrison, 537 S.W.2d 274 (Tex.Civ.App. — El Paso 1976, writ ref'd n.r.e.) where on motion for rehearing, we concluded that an Appellee who filed a brief and raised no question about the assignment of error to support a point of error waived the complaint because of failure to timely raise the issue. We concluded that one who seeks to do battle on the merits of any issue and loses, may not for the first time in a motion for rehearing claim there should have been no battle in the first place. The Texas Supreme Court reached that same result nine years later in Morrison v. Chan, 699 S.W.2d 205 (Tex. 1985) where Justice Gonzalez wrote, "The court of appeals did not err in refusing to reverse the case on a point raised for the first time in Morrison's motion for rehearing." Id. at 206-207. Other courts have reached the same result. Sherrod v. Moore, 819 S.W.2d 201, 205 (Tex.App. — Amarillo 1991, no writ) (on motion for rehearing); Langston v. Eagle Publishing Co., 719 S.W.2d 612, 625 (Tex.App. — Waco 1986, writ ref'd n.r.e.) (on motion for rehearing); Washington v. Walker County, 708 S.W.2d 493, 497 (Tex.App. — Houston [1st Dist.] 1986, writ ref'd n.r.e.) (on motion for rehearing).

We conclude that the Appellant did not properly preserve the "no evidence" issues so as to obtain a rendition, as opposed to a remand, but the Appellees waived their right to complain and the Court will not, after spending days and weeks on these issues, now again review them based upon a complaint raised for the first time in a motion for rehearing.

We next consider the argument that this Court has erred in assessing the great weight and preponderance point concerning the issue of negligent entrustment. It is argued that where the evidence is conflicting, the jury's verdict is generally regarded as conclusive. In passing on such an issue, a court of appeals is required to weigh all of the evidence and to remand the cause for a new trial if it concludes that the verdict was so against the great weight and preponderance of the evidence as to be manifestly unjust. Traylor v. Goulding, 497 S.W.2d 944 (Tex. 1973); Montes v. Texas Employers' Insurance Ass'n, 779 S.W.2d 485 (Tex.App. — El Paso 1989, writ denied).

This is not a case where the Appellees, as plaintiffs in the trial court, put on evidence all of which supported the jury finding, and the Appellant, as defendant in the trial court, put on evidence to the contrary. Instead, this is a case where the evidence came from Appellees' own witnesses who testified that the vehicle had not been loaned out to some person to drive. One of Appellees' witnesses, Argelia Jaurequi, testified that she had hooked battery cables up to the van shortly before it was taken. Another of the Appellees' witnesses, Jeff Fargason, said he saw the van on the lot on July 24. William Boggs, Jr. said he saw the van that morning. Steve Brown said the battery was dead that afternoon. Silverio Zubia, Jr. said he saw the van an hour before it was reported stolen on the evening of the 24th. All of this testimony came from witnesses called by the Appellees. None of their testimony was impeached and there was no attack on their credibility. Having chosen to vouch for the credibility of at least five witnesses who saw the van on the lot on the 24th shortly before it was reported stolen, the Appellees are not in a position to argue that the finding that the vehicle was entrusted by the owner is not against the great weight and preponderance of the evidence. It was their own evidence which makes the finding against the great weight. Although the Appellees may have been in a position to call all of these witnesses who had worked at one time for Story Dodge as adverse witnesses, they chose not to do so and put each of these witness on the stand, as all of their other witnesses, and to vouch for their testimony before the jury. This made them their witnesses. Industrial Fabricating Co. v. Christopher, 220 S.W.2d 281 (Tex.Civ.App. — Galveston 1949, writ ref'd n.r.e.).

We have considered all the points of error in the Motion for Rehearing and they are all overruled.