imitation prescribed by Section 610, Code of 1942, or the four year limitation prescribed by Section 725, Code of 1942, is applicable. Adams v. Board of Supervisors of Union County, 177 Miss. 403, 170 So. 684; Adams v. City of Clarksdale, 95 Miss. 88, 48 So. 242; A.H. George Co. v. Louisville N.R. Co., 88 Miss. 306, 40 So. 486; Anderson v. Leland, 48 Miss. 253; Board of Trustees of Kingston Consolidated School District v. Forman, 233 Miss. 42, 101 So.2d 102; Capps v. Dodd (Texas Civ. App.), 246 S.W.2d 267; County Board of Education of Jones County v. Smith, 239 Miss. 53, 121 So.2d 139; Edwards v. Hawkins (Texas Civ. App.), 77 S.W.2d 1098; Estes v. Memphis C.R. Co., 152 Miss. 814, 119 So. 199; Greaves v. Hinds County, 166 Miss. 89, 145 So. 900; Gully, State Tax Collector v. Lumbermen's Mutual Casualty Co., 176 Miss. 388, 166 So. 541; Hassie Hunt Trust v. Proctor, 215 Miss. 84, 60 So.2d 551; Leavenworth Son v. Hunter, 150 Miss. 245, 116 So. 593; McElyea v. Bowles (Texas Civ. App.), 233 S.W.2d 482; McNeely v. Natchez, 148 Miss. 268, 114 So. 484; Mississippi Valley Trust Co. v. Brewer, 157 Miss. 890, 128 So. 83; Mitchell v. Finley, 161 Miss. 527, 137 So. 330; Murray v. Oliver (Texas Civ. App.), 61 S.W.2d 534; Powell v. Buchanan, 245 Miss. 4, 147 So.2d 110; Sovereign Camp, W.O.W. v. Durr, 186 Miss. 850, 192 So. 45; Starnes v. Sumners (Texas Civ. App.), 239 S.W.2d 880; Waco Cotton Oil Mill of Waco v. Walker (Texas Civ. App.), 103 S.W.2d 1071; Wagner v. Gibbs, 80 Miss. 53, 31 So. 434; Chap. 49 Art. 1, Code 1848; Chap. 60 Art. 119, Code 1857; Sec. 1176, Code 1871; Sec. 2080, Code 1880; Secs. 609, 610, 612, 725, Code 1942; 87 C.J.S., Trespass, Sec. 1 pp. 955, 961; Words and Phrases, Trespass, pp. 68 et seq. II.
In a non-jury hearing such as this it was the trial judge's function to pass on the credibility of the witnesses, the weight to be given to their testimony, to resolve conflicts in the evidence, and to determine what facts have and have not been established by a preponderance of the evidence. McElyea v. Bowles, 233 S.W.2d 482 (Fort Worth, Tex.Civ.App., 1950, no writ hist.). Where much of the testimony at such a hearing is furnished by interested parties it is for the trial judge to pass on the credibility of such testimony. Reed v. Yonker, 237 S.W.2d 360 (San Antonio, Tex.Civ.App., 1951, no writ hist.).
There being ample evidence of probative force to support the trial court's judgment, when viewed in the light of the above rules, the judgment is sustained. McElyea v. Cosby, 233 S.W.2d 482 (Tex.Civ.App., 1950, no writ hist.); Martinez v. General Beverage Distributors, 312 S.W.2d 284 (Tex.Civ.App., 1958, no writ hist.). Judgment affirmed.
In the instant case, in the absence of findings of fact or conclusions of law, this Court must presume that the trial court resolved all issuable facts in such a way as to support its judgment. If there was competent testimony to support the court's judgment, the judgment must be sustained. McElyea v. Cozby, 233 S.W.2d 482, Tex.Civ.App.; Martinez v. General Beverage Distributors, Inc., 312 S.W.2d 284, Tex.Civ.App.; James v. Drye, 1959, 159 Tex. 321, 320 S.W.2d 319. The evidence is undisputed that the note held by the Bank was payable to it at Angleton, Texas, and that in the deed accepted by appellant she assumed payment of such note.
This Court, therefore, must presume that the trial court resolved all issuable facts in such a way as to support the judgment entered. If there is competent testimony to support the court's judgment, the judgment must be sustained. McElyea v. Cozby, 233 S.W.2d 482, Tex.Civ.App.; Martinez v. General Beverage Distributors, Inc., 312 S.W.2d 284, Tex.Civ.App. In Banks v. Collins, 1953, 152 Tex. 265, 257 S.W.2d 97, it was held that if the evidence is conflicting and there exists in the record sufficient evidence of probative force to support the judgment of the trial court, then the judgment should not be disturbed on appeal.
There were no fact findings filed and none were set out in the judgment, and we must presume the trial court resolved all issuable facts in such a way as to support the judgment entered. McElyea v. Bowles, Tex.Civ.App., 233 S.W.2d 482. As to the contention of appellant that the record fails to demonstrate the breach by appellant of any duty to anyone, we think, if the matters alleged were true, that appellant's agent, knowing the workmen on the well being drilled might be injured if there should be an explosion, owed a duty to the men on said drilling rig. Roosth Genecov Production Co., Inc. et al. v. White, et al., 152 Tex. 619, 262 S.W.2d 99 by the Supreme Court.
Where no fact findings are filed and none set out in the judgment, the appellate court will presume that the Trial Court resolved all issuable facts in such a way as to support the judgment entered. If there is competent testimony to support a judgment on a plea of privilege, although the judgment does not recite such fact findings, the judgment will be sustained. See McElyea v. Cozby, Tex.Civ.App., 233 S.W.2d 482. If the evidence is conflicting and there exists in the record sufficient evidence of probative force to support the judgment of the Trial Court, then the judgment should not be disturbed on appeal. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97.
In a somewhat similar set of facts it is held in Sutherland v. Cotter, Tex.Civ.App., 226 S.W.2d 476, that the driver of a motor vehicle following another more closely than is reasonable and prudent, in violation of Article 6701d, ยง 61(a), commits a trespass as contemplated by Section 9, Article 1995. It is also held in this authority that excessive speed is active negligence. To the same effect are McElyea v. Bowles, Tex.Civ.App., 233 S.W.2d 482, and Edwards v. Hawkins, Tex.Civ.App., 77 S.W.2d 1098, the latter case cited with approval by the Supreme Court in Jackson v. McClendon, 143 Tex. 577, 187 S.W.2d 374. Appellant cites the case of Douglas v. Williams, Tex.Civ.App., 83 S.W.2d 686, 688.
By reason of these and many other such authorities it is our opinion that appellee, by his pleadings supported by the evidence, has established active or affirmative acts of negligence under the provisions of the alleged venue statute on the part of appellants by reason of Gadys Wayne Starnes, while acting for himself and as agent for his father, W. C. Starnes, having driven his father's truck into the rear of appellee's automobile and having operated said truck too closely to appellee's automobile and at a negligent rate of speed under the facts and circumstances at the time and place of the collision. McElyea v. Bowles (McElyea v. Cozby), Tex.Civ.App., 233 S.W.2d 482; J. A. E. D. Transport Co. v. Rusin, Tex.Civ.App., 202 S.W.2d 693. For these reasons the record supports the judgment of the trial court. Appellants' points to the contrary are all overruled and the judgment of the trial court is affirmed.