(dissenting).-
Í do not-concur in the opinion of the majority' granting appellees’ motion for a rehearing, setting aside' our judgment reversing the judgment of the .trial court and now affirming-that judgment.
I adhere to all. that .was said in our original opinion and in addition thereto ■I will- further state my reasons for dissenting.
It will be borne in mind that this was a ■summary judgment in which the burden of proof was upon appellees- 'to conclusively establish that they were not liable under the doctrine of negligent entrustment of an automobile to an incompetent driver, as it exists in Texas. Section 36 of Art. 6687b, Vernon’s Ann.Civ.Stats.; Frontier Theatre v. Whisenant, Tex.Civ.App., 291 S.W.2d 395. The summary judgment was based upon the motion of appellees for a summary judgment in which depositions on file in the case wefe made a part of the motion, and -appellants’ reply, with the affidavit of one Charles Edward Rush ■' attached thereto as Exhibit A. Appellees undertook to introduce in evidence parts of the depositions and to have certain other parts excluded, but this procedure was improper after the entire depositions had been made a part of their motion for a summary judgment.
Appellees sought to escape liability on the .ground that they did not own the 1939 Cadillac on December 18, 1953, the date of the collision, as they allegedly had previously sold it to Munoz on December 12, 1953. Under Spillar’s testimony, if a sale took place on December 12, 1953, it was a void and illegal sale, as there was no intention on his part to transfer the certificate of title to Munoz at the time of the sale. This was to be done only after Munoz had finished paying for the Cadillac, which was to take' him some time. Sections 33 and 53, Art. 1436-1, Vernon’s Ann. Penal Code;, Elder Chevrolet Co. v. Bailey County Motor Co., Tex.Civ.App., 151 S.W.2d 938; Commercial Credit Co. v. American Mfg. Co., Tex.Civ.App., 155 S.W.2d 834; Giles v. Lehman, Tex.Civ.App., 163 S.W.2d 720; Fulcher v. Hall, Tex.Civ.App., 170 S.W.2d 321; McKinney v. Croan, 144 Tex. 9, 188 S.W.2d 144; Reeb v. Danley, Tex.Civ.App., 221 S.W.2d 579; Deahl v. Thomas, Tex.Civ.App., 224 S.W. 2d 293;. Associates Inv. Co. v. National *879City Bank of Waco, Tex.Civ.App., 231 S.W.2d 661. Appellees will not be permitted to plead their own void and illegal acts as a defense to appellants’ cause of action.
The facts testified to. by Spillar in his deposition, at most show a contract to sell an automobile, which passes no title and would leave appellees the owner of the 1939 Cadillac. Alamo Cas. Co. v. William Reeves & Co., Tex.Civ.App., 258 S.W.2d 211; Elder Chevrolet Co. v. Bailey County Motor Co., Tex.Civ.App., 151 S.W.2d 938; Giles v. Lehman, Tex.Civ.App., 163 S.W.2d 720; Davis v. Gonzales, Tex.Civ.App., 235 S.W.2d 221; Onwiler v. Burtrum, Tex.Civ.App., 236 S.W.2d 157; Willingham v. Fidelity & Casualty Co. of N. Y., Tex.Civ.App., 288 S.W.2d 884.
There are several reasons why. the testimony of appellees given in their depositions' did not conclusively establish" their non-liability and entitle them to a summary judgment in their favor. In the first place,' the record shows that the certificate of title to the 1939 Cadillac' Was held by" appellees and had never been transferred to Munoz. The testimony of Spillar, one-of the ■ appellees, to the fact that he had-made a verbal-sale of the Cadillac to Munoz could do .no more than raise the issue of. a sale ,to be weighed by the .trier of facts and therefore only raises a fact issue. - It is far from being conclusive, as is -required to support a summary judgment. Helmuth v. Frame, 46 Cal.App.2d 372, 115 P.2d 846.
In the- second place, Spillar’s testimony was contradicted by Munoz, a co-defendant, and thus it is obvious that only a fact issue was raised. Furthermore, Rush in his affidavit stated that immediately after the accident Spillar in effect had stated that the Cadillac belonged to appellees. Under such circumstances appellees fell far short of establishing conclusively that they did not own the 1939 Cadillac at the time of the collision. The evidence conclusively shows that appellees did turn the possession of the Cadillac over to Munoz, and that' Munoz did not have 'a driver’s license.There was no attempt to show that .Munoz was not negligent, and it is not conclusively shown that appellees did not know that Munoz did not have a driver’s license, or that by using due diligence they could, not have ascertained such -fact. Frontier Theatre v. Whisenant, Tex.Civ.App., 291, S.W.2d 395. Appellants, in my opinion, were clearly entitled to have their ■ case heard upon its merits and the’question of-entrustment should have awaited the proof.’
The majority seeni to give great im-’ portance to the fact that there is testimony to the effect that Spillar delivered possession of the Cadillac t.o Munoz at the time he entered into the oral agreement concerning the sale. This testimony is far from conclusive. In addition to coming from an interested party, it is contradictory within itself.' In one place' Sp'illar says he gave possession the day before the sale agreement; -1 Munoz says- he .got possession of the Cadillac in-the middle of the week, to be used in going, to. and from his work, before the conversation as to the sale took place o'n Saturday. "But even'i'f possession had been given at -the "time the contract to sell was madey it still .would not change the ownership, and appellees would remain the owners. Willingham v. Fidelity & Casualty Co. of N. Y., Tex.Civ.App., 288 S.W.2d 884.
The majority discuss the effect of sales,, gifts and conditional sales upon the doctrine of negligent entrustment, but all of this is rendered immaterial by the finding that the transaction here relied upon. by appellees was only a contract to. sell the Cadillac. I readily agree that the doctrine of negligent entrustment as it exists in this State cannot be based upon a sale, a gift, or a conditional sale of a motor vehicle to an incompetent driver, but I do contend that the fact that the owner has entered into an oral agreement to sell a motor vehicle to an incompetent driver will not excuse him for negligently entrusting it to such incompetent driver, *880pending the completion of the oral agreement to sell such motor vehicle to him.
The majority state that only the testimony of Munoz is considered, but in my opinion the conflict between the testimony of Munoz and Spillar and Rush should be considered in determining whether a genuine issue of fact was raised by all the testimony.'
In my opinion the judgment of the trial court should be' reversed and the cause remanded, as was .done in our original opinion and judgment.