author: DROWOTA, Judge.

text:
    Stevie J. HARGIS b/n/f and father, Donald Hargis, Plaintiff-Appellee, v. PILOT LIFE INSURANCE COMPANY, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Feb. 25, 1977.
    Certiorari Denied by Supreme Court April 25, 1977.
    James W. Chamberlain, Chamberlain & Parker, Lafayette, for defendant-appellant.
    Frank D. Farrar, Lafayette, for plaintiff-appellee.
   DROWOTA, Judge.

OPINION

This is an action to recover under a group athletic accident insurance policy for medical expenses. The assignments of error raise two issues for our determination: (1) whether this action is barred by principles of res judicata and (2) whether the insurance policy covers the medical expenses incurred by the insured.

On March 27, 1972, plaintiff-appellee suffered a broken leg while playing football at Macon County High School. A steel plate was inserted in his leg to hold the fracture in proper position. At this time it was known that the steel plate would need to be surgically removed in 18-24 months. This plate was removed from plaintiff’s leg on December 28, 1973.

Plaintiff was insured under an athletic accident insurance policy issued by defendant-appellant to Macon County High School. This policy obligated defendant to pay for all reasonable medical expenses incurred within one year of the date of the accident up to $5,000.00. Defendant paid the medical expenses charged to plaintiff for the twelve month period after the injury was sustained. However, defendant denies liability for the medical expenses of removing the steel plate since those expenses were incurred more than twelve months after the accident.

On March 14,1975, plaintiff first instituted this action to recover for the medical expenses of removing the steel plate from his leg by filing a civil warrant against defendant in the General Sessions Court of Macon County, Tennessee. This action was dismissed at the request of the plaintiff on April 26, 1975, the scheduled date for the trial of this matter. The Judge wrote “Dismissed” on the civil warrant.

On July 16, 1975, plaintiff filed a second suit in the General Sessions Court of Macon County, Tennessee. Defendant filed a plea arguing that this action was barred under principles of res judicata. The Judge dismissed this action.

Plaintiff appealed to the Circuit Court of Macon County, Tennessee. The Court overruled defendant’s plea of res judicata and granted plaintiff a judgment in the amount of $764.80, which sum represents the expenses incurred in removing the steel plate. The Court found under the authority of Atchley v. Travelers Ins. Co., 489 S.W.2d 836 (Tenn.1972), that the expenses for removing the steel plate were incurred when the steel plate was implanted and thus covered under the insurance policy.

I.

The first issue for determination is whether this action is barred by principles of res judicata. This action was first scheduled to be heard in General Sessions Court on April 26, 1975. Plaintiff voluntarily asked for a dismissal at the hearing and the word “Dismissed” was written by the Judge on the civil warrant. On July 16, 1975, plaintiff filed this suit for a second time in General Sessions Court. Defendant argues that this action is barred under principles of res judicata.

Plaintiff should have' asked for a “voluntary nonsuit” or a “dismissal without prejudice.” A voluntary nonsuit or a dismissal without prejudice does not preclude a party from reinstituting his law suit.

At the time this first action was dismissed there had been no trial on the merits. Since there was no trial on the merits and since defendant’s second assignment of error is determinative of this appeal, we overrule appellant’s first assignment of error. See Stewart v. Univ. of Tennessee, 519 S.W.2d 591, 593 (Tenn.1974).

II.

The second issue for consideration is whether the expenses for the removal of the steel plate are covered under the insurance policy issued by the defendant. The relevant language of the insurance policy is as follows:

PART B — MEDICAL AND DENTAL EXPENSE BENEFITS
“Covered Medical and Dental Expenses” means the following charges, not in excess of the reasonable and customary charges made by the individual or organization for the services rendered or the supplies furnished, when actually made to or on account of an insured person for services or supplies which are necessary to the care and treatment of “such injuries”, are ordered by a physician (or a dentist, in the case of dental treatment) and are rendered or furnished not later than twelve months after the date of the accident in which “such injuries” were sustained; .
EXCLUSIONS
(7) nor shall payment of any kind be made for or on account of
(b) expenses incurred on account of any injury if such expenses are incurred more than twelve months following the date of the accident in which such injury was sustained; an expense- being deemed to have been incurred on the date the service for which the charge is made shall have been received or rendered.

The Circuit Court relied on Atchley v. Travelers Ins. Co., 489 S.W.2d 836 (Tenn.1972) in holding that the expenses for the removal of the steel plate were incurred within twelve months of the date of the accident since at the time the steel plate was implanted in plaintiff’s leg it was known that in 18-24 months the plate would have to be removed.

In Atchley the Supreme Court held that medical expenses are “incurred” when the necessity for the medical expenses is manifested and not when the services are actually performed. The facts in Atchley involved an insured who sustained a fractured tibia. Within a year of the accident two metal screws were implanted in the tibia. At the time of the implantation it was known that the screws would need to be removed at a later date. The insurance policy covered all medical expenses incurred within a year of the accident. The screws were removed more than a year after the accident. The Supreme Court held that the expenses for the removal of the screws were incurred when the screws were implanted and thus were covered by the insurance policy.

We recognize Atchley as authority for an interpretation of the word “incurred” in an insurance contract employing language similar to that used in the insurance policy sued upon in Atchley. The word “incurred” was not further defined in the insurance policy in Atchley.

In the case at bar the language of the insurance policy is quite different from the language of the insurance policy in Atchley. The insurance policy covers “medical expenses rendered or furnished not later than twelve months from the date of the accident.” The policy excludes expenses incurred more than twelve months from the date of the accident and defines “incurred” as follows: “an expense being deemed to have been incurred on the date the service for which the charge is made shall have been received or rendered.” In contrast to the insurance policy in Atchley, the insurance policy sued upon here specifically provides that expenses “received”, “rendered” or “furnished” more than twelve months after the accident are not included in the coverage of the policy. We thus find that the Atchley decision is not controlling in this case due to the differences between the language used in the insurance policies in Atchley and the case at bar.

It is clear that the medical expenses for the removal of the steel plate were “received”, “rendered” or “furnished” more than twelve months after the accident and are not covered under the terms of the insurance policy.

The judgment of the Circuit Court is therefore reversed and this action is dismissed.

Reversed and dismissed.

SHRIVER, P. J., concurs.

TODD, J., concurs.

      . This Court has reviewed the insurance contract which was construed by the Supreme Court in Atchley. The pertinent language of the policy is: “The company will pay all reasonable medical expenses incurred within one year from the date of the accident: . It should be noted that the trial court did not have the benefit of the Atchley insurance contract.


source: Caselaw Access Project

author: TATUM, Judge.

license: Public Domain

text:
    Dewey Scott FRAZIER, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 28, 1977.
    Certiorari Denied by Supreme Court Feb. 13, 1978.

      Cary C. Taylor, Thomas R. Bandy, III, Kingsport, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. DeLaney, Asst. Atty. Gen., Nashville, Carl K. Kirkpatrick, Dist. Atty. Gen., H. Greeley Wells, Asst. Atty. Gen., Blountville, for appellee.
   OPINION

TATUM, Judge.

The defendant Dewey Scott Frazier, appeals from multiple convictions in the Criminal Court of Sullivan County. He was sentenced to not less than twenty-five years nor more than forty years confinement upon his conviction for bank robbery. This sentence was enhanced to a life sentence upon the jury’s verdict, finding the defendant to be an habitual criminal. He received a five-year sentence upon conviction for using a firearm during the commission of a felony, and a sentence of eleven months and twenty-nine days for an assault and battery conviction. The sentences were ordered to run consecutively.

The defendant makes twelve assignments of error, attacking the various convictions on numerous grounds. They are without merit.

In Assignments Seven, Eight and Nine, the defendant attacks the evidence and the law upon his convictions for bank robbery, use of a firearm in the commission of a felony, and assault and battery. This prompts us to summarize the accredited evidence. The evidence of the defendant’s guilt of these three offenses is overwhelming. Shortly before closing time on 14 September 1976, the defendant entered the Plaza Branch of the First National Bank of Sullivan County and waited for about fifteen minutes to see Mr. Jeffrey Smith, the loan officer. Just before 4:00 o’clock P.M., he entered Mr. Smith’s office and introduced himself as Doug Shelton. He discussed the possibility of a loan and had the slight odor of alcohol on his breath. After the defendant and Mr. Smith completed their conversation, they walked out of Mr. Smith’s office. Mr. Smith was ready to unlock the bank’s door, as the bank was then closed, when the defendant pointed a pistol at him saying, “I want your money. This is a robbery.”

At gunpoint, the defendant forced Mr. Smith behind the teller’s cage and told the six employees, “I want your money.”

The defendant handed a brown paper bag to Mrs. Zelda Breeding, a teller, and forced her to go down the line of teller’s cages and take the money from the cash drawers. He ordered the remaining employees to “hit the floor.” As Mrs. Breeding removed cash from the teller’s drawers, she activated the bank’s alarm system and also a camera system within the bank. She also placed “bait money” in the paper sack.

The telephone rang and the defendant’s gun discharged, shooting Mrs. Breeding’s fingers. The defendant then forced Mr. Smith to unlock the bank door for him. The defendant did not conduct himself as an intoxicated person while in the bank. He took $4,138.00.

Mr. Smith was met by a City Policeman as he was leaving the bank. Mr. Smith asked a cleaning lady if she had seen anyone come out of the bank and the cleaning lady responded, “There they go in a car,” referring to a white Corvair in which the defendant was riding. It turned west on Bloomingdale Pike. Mr. Smith gave its description and its direction of travel to the police officer.

The cleaning lady had initially seen the white Corvair in the bank parking lot with its engine running and an individual sitting at the wheel. She then saw a man run out of the bank and get into the Corvair. The cleaning lady noticed that the rear license plate of the Corvair was folded down, concealing the numbers. The cleaning lady gave FBI agents' this information about 5:00 P.M.

Police officers Gibson and Doty, after having received descriptions of the Corvair over their radio, observed the white Corvair and pursued it. The Corvair stopped and a man known by the officers to be the defendant, got out of it. The officers blocked the Corvair with the police car and Officer Gibson apprehended the defendant after a chase on foot. The defendant had a gun when he got out of the Corvair, but it was not in his possession when he was searched and handcuffed by Officer Gibson.

Subsequent investigation revealed that the defendant placed something behind a shovel which was propped against a house in the area where the defendant was arrested, and that the defendant was seen throwing away the gun. The paper sack containing the money was found behind the shovel and the gun was found where the individual had seen it thrown by the defendant. Some of the money in the paper sack was identified by its serial numbers as the “bait money” from the bank. Sunglasses worn by the defendant during the robbery were found in the front seat of the police car which was used to transport the defendant to jail. The defendant had twenty bullets in his pocket when arrested. He had a slight odor of alcohol on his breath at the time of his arrest, but was not intoxicated. There was other evidence tending to link the defendant with these crimes but we do not deem it necessary to further detail the State’s evidence.

The defendant’s wife and a friend testified that the defendant took several valium capsules on the morning of the crime and drank one-half pint of pure-grain alcohol prior to robbing the bank. Another defense witness saw the defendant between 12:30 and 1:00 P.M. on the day of the robbery and saw no indication that he was intoxicated. The defendant did not testify.

The defendant stands before this court clothed in a presumption of guilt and the burden has now shifted to him to show that the evidence preponderated against the jury verdicts of guilty, approved by the Trial Judge. This he has failed to do. He has more than sufficient convictions to bring him within the habitual criminal statutes. We must overrule Assignments Seven, Eight and Nine. State v. Grace, 493 S.W.2d 474 (Tenn.1973); Jones v. State, 548 S.W.2d 329 (Tenn.Cr.App.1976).

In Assignment Ten, the defendant says that the Court erred in refusing to grant his motion to quash the indictment because it “failed to state with particularity the alleged crime as specified in the statute for bank robbery.”

The statute defining bank robbery is T.C.A. § 39-3902:

“39-3902. Bank Robbery — Penalty.—It shall be unlawful for any person to felo-niously enter any banking house or place where moneys are kept on deposit and securities of any value deposited for safekeeping and by violence or putting in fear any person therein charged with the custody, care, or keeping of such money or securities of any value, to feloniously take and remove or attempt to take and remove from such banking house any such moneys or securities of any value; and any person so doing shall be deemed guilty of the crime of bank robbery.
Any person duly convicted of bank robbery as defined in this section shall be punished by imprisonment in the state penitentiary for a term of not less than twenty (20) years nor more than forty (40) years.”

The count of the indictment charging the defendant with bank robbery is as follows:

“The Grand Jurors for the State and County aforesaid, upon their oath present and say that Dewey Scott Frazier on or about September 14,1976, and before the finding of this indictment in the State and County aforesaid did unlawfully, willfully, feloniously, forcibly and by the use of a deadly weapon, namely, a gun, take and remove approximately $4,138.00 in bank funds from the person or presence of Zelda Breeding, an employee of the Plaza Branch of the First National Bank of Sullivan County, Tennessee, who was charged with the care, custody or keeping of said monies, which monies were in possession of the Plaza Branch of the First National Bank of Sullivan County, Tennessee, a banking house, by putting the said Zelda Breeding in fear, contrary to the laws of the State of Tennessee, and against the peace and dignity of the State of Tennessee. [Emphasis supplied.]

The defendant does not specify what he deems to be defective about the indictment. He says that the indictment is “so vague, general and indefinite” that it violates his Fifth and Sixth Amendment rights and “is couched in such general terms and language that not only is defendant unable to prepare his defense, but he could not plead an acquittal or conviction in bar of any other proceedings against him.” The defendant cites no authority in support of his contention and is vague and indefinite as to why he deems the indictment to be “vague and indefinite.”

We think the indictment meets the requirements of T.C.A. § 40-1802:

“40-1802. Statement of offense. — The indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment; and in no case are such words as ‘force and arms’ or ‘contrary to the form of the statute’ necessary.”

The indictment sufficiently charged: — the robbery occurred by violence and putting Mrs. Breeding in fear; she had charge of the care, custody and keeping of the money; the money was bank funds; and, the money was taken from the possession of the bank at the banking house. The indictment stated the facts constituting the offense with sufficient certainty to enable the court to pronounce the proper judgment and to protect the defendant against a future prosecution for the same offense. The indictment was sufficient. See, Fox v. State, 171 Tenn. 226, 101 S.W.2d 1110 (1937); Pope v. State, 149 Tenn. 176, 258 S.W. 775 (1924); State v. Witherspoon, 115 Tenn. 138, 90 S.W. 852 (1906). Assignment Ten is overruled.

In the fourth assignment of error, the defendant complains of the Trial Court’s refusal to grant his motion for a change of venue. In support of his motion, he testified on his own behalf and introduced as exhibits, several newspaper articles from a local newspaper. He also testified that there were numerous accounts of the crime over other news media. No evidence was offered to the effect that the defendant could not receive a fair trial in Sullivan County. More than one-half of the jurors accepted had read or heard nothing about the case. None of them had formed any opinion, and all stated they could base their verdict on the law and the evidence.

The mere exposure of jurors to newspaper publicity is not constitutional error. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Swain v. State, 219 Tenn. 145, 407 S.W.2d 452 (1966). The question of change of venue is one within the discretion of the Trial Judge and there must be a clear abuse of this discretion for this Court to reverse the action of the Trial Court. Miller v. State, 520 S.W.2d 729 (Tenn.1975); Lang v. State, 3 Tenn.Cr.App. 108, 457 S.W.2d 882 (1970). We do not find that the Trial Judge abused his discretion and this assignment is overruled.

Assignment One is that the Trial Judge erred in not granting special requests for jury instructions tendered by the defendant. Assignment Five charges the Trial Judge with error in charging the jury that voluntary intoxication is not a defense to the crimes for which the defendant was on trial. The substance of the two special requests to charge was that if the defendant did not have criminal intent to commit these crimes, whether due to intoxication or other “abnormal mental or physical condition,” or if the jury had a reasonable doubt as to the defendant’s intent, then he should be acquitted. We find that the Trial Judge correctly and completely instructed the law relating to voluntary intoxication and criminal intent. In summary, he charged the jury that as a general rule, voluntary intoxication is no defense in a criminal case, but when a crime requires specific intent, a defendant “must be mentally capable of forming thát specific intent at the time of the commission of the act.” The Trial Judge also instructed the jury at length concerning the law of insanity as a result of intoxication. We find no error in the Court’s jury instructions. The law relating to “intent” was fully covered in the main charge. Assignments One and Five are overruled. Edwards v. State, 540 S.W.2d 641 (Tenn.1976); Grafton v. State, 545 S.W.2d 437 (Tenn.Cr.App.1976).

In Assignment Two, the defendant alleges error because the Trial Judge did not declare a mistrial after the District Attorney General passed a weapon, previously admitted into evidence, to the jury for inspection during final argument. The record reflects that the District Attorney General displayed to the jury the pistol, an exhibit, during final argument, to show that it was a “hair trigger.” The defendant objected and the Trial Judge sustained the objection. The Trial Judge instructed the jury to disregard arguments in the area, including the physical characteristics of the gun, as to whether it was a hair trigger. The defendant did not move for a mistrial. There is a presumption that the jury complied with the Court’s instruction to disregard this argument. Bennett v. State, 530 S.W.2d 788 (Tenn.Cr.App.1975); Craig v. State, 524 S.W.2d 504 (Tenn.Cr.App.1974). The granting of a mistrial is within the discretion of the Trial Judge and we will not disturb that action absent a finding of an abuse of discretion. Jones v. State, 218 Tenn. 378, 403 S.W.2d 750 (1966); Hembree v. State, 546 S.W.2d 235 (Tenn.Cr.App.1976). We do not find that the Trial Judge abused his discretion. Assignment' Two is overruled.

The defendant, in Assignment Three, says that the Court erred in not requiring Echol Head, an alleged accomplice, to testify. The defendant called Mr. Head to the witness stand. He refused to answer any questions, stating that he desired to avail himself of his Fifth Amendment right not to testify. He was at the time awaiting trial for the robbery of the bank. The Trial Judge did not require him to testify. While the action of the Trial Judge in effect denied the defendant of his right to compulsory process as guaranteed under Article I, Section 9 of the Tennessee Constitution and the Sixth Amendment to the United States Constitution, the Trial Judge ruled properly. When there is a conflict in a defendant’s right of compulsory process and a witness’s right against self-incrimination, the right against self-incrimination is the stronger and paramount right. United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973); United States v. Wyler, 487 F.2d 170 (2nd Cir. 1973); United States v. Beye, 445 F.2d 1037 (9th Cir. 1971); Holsen v. United States, 392 F.2d 292 (5th Cir. 1968). This assignment is overruled.

In his eleventh assignment of error, the defendant says that the Court erred in allowing the State to “carve three offenses out of one continuous and uninterrupted act.” We think that the offenses of bank robbery, the use of a pistol in a commission of a felony, and assault and battery are three separate and distinct offenses. Although they occurred at substantially the same time, the same evidence was not required to prove any one offense as was required to prove another. Any one of these three offenses could be committed without committing either of the other two. The elements of the three offenses are different and none of the offenses are included within the others. See, State v. Black, 524 S.W.2d 913 (Tenn.1975), and the cases cited therein. This assignment is overruled.

In Assignment Six, the defendant charges that the Court erred in permitting proof of four separate convictions for escape during the defendant’s trial as an habitual criminal. The defendant argues that jail escape is not an offense that falls within the scope of the statute. T.C.A. § 40-2801 (Habitual Criminal Act) provides, in part, as follows:

“Any person who has either been three (3) times convicted within this state of felonies, not less than two (2) of which are among those specified in §§ 39-604, 39-605, 39-609, 39-610, 39-3708', 40-2712, 52-1432(a)(l)(A) or were for a crime punishable by death under existing law

The State proved that the defendant was convicted of four felonious escapes committed by the defendant on four separate and distinct occasions. The State also proved multiple convictions for burglary.

It is true that the felony of escape under T.C.A. § 39-3807 is not specified in T.C.A. § 40-2801 as being a crime for which two of the three felony convictions must be present to constitute a violation of the habitual criminal act. Two of the three convictions must be for one of the crimes specified, but the third conviction may be for any felony except petit larceny. As stated, all four of the escape convictions were felonies. It was proper for the State to prove all of the defendant’s felony convictions in the habitual criminal hearing, even though the defendant had more convictions than were required under the act. This assignment is overruled.

In Assignment Twelve, the defendant says that the Court erred in allowing the consideration of all prior convictions in establishing his status as an habitual criminal. The record reflects that the defendant was convicted for five burglaries committed on 31 March 1964. These burglaries can be counted as only one offense under T.C.A. § 40-2801. Frazier v. State, 485 S.W.2d 877 (Tenn.Cr.App.1972). He was convicted of two additional burglaries and four felony escapes. He has now been convicted for bank robbery.

The defendant argues that he was previously adjudicated to be an habitual criminal, but the previous conviction was reversed. He says that no conviction prior to the date of his previous habitual criminal trial can now be considered as this would result in double jeopardy. He cites no authority in support of this contention. The record before us contains no information concerning the previous habitual criminal conviction, but we look to the record of this court to determine the cause for vacating the defendant’s previous adjudication as an habitual criminal. Canupp v. State, 3 Tenn.Cr.App. 249, 460 S.W.2d 382 (1970); State ex rel. Leighton v. Henderson, 1 Tenn.Cr.App. 598, 448 S.W.2d 82 (1969).

In Dewey Scott Frazier v. State, Sullivan County No. 141 (Tenn.Crim.App. Aug. 22, 1972), this Court found there was only proof of three convictions upon which the jury could find the defendant to be an habitual criminal. One of these convictions was a conviction for forgery. The defendant was never sentenced upon this forgery conviction and it was finally “stricken from the docket” without a final judgment. This court held that for this reason, the forgery conviction could not be considered in determining the defendant to be an habitual criminal. This left only two convictions and the judgment finding the defendant to be an habitual criminal was vacated.

In the case sub judice, this forgery conviction was not submitted to the jury. Counting the five burglary convictions of 31 March 1964 as one conviction; there were three burglary convictions, four felony escape convictions and one bank robbery conviction. This is more than enough to bring the defendant under T.C.A. § 40-2801. Assignment Twelve is overruled.

The judgment of the Circuit Court is affirmed.

RUSSELL and DAUGHTREY, JJ., concur.

      . He was also convicted in the case sub judice of the felony of using a firearm in the commission of a felony, but this offense was committed during the bank robbery and cannot be counted in addition to the bank robbery under T.C.A. § 40-2801.


author: DUNCAN, Judge.

text:
    Johnny Lee SMITH, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 1, 1978.
    Certiorari Denied by Supreme Court May 8, 1978.

      Mose J. Davie, Nashville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Guy R. Dotson, Dist. Atty. Gen., Jeffrey S. Henry, Asst. Dist. Atty. Gen., Murfrees-boro, for appellee.
   OPINION

DUNCAN, Judge.

The defendant, Johnny Lee Smith, was convicted in the Rutherford County Circuit Court of rape and received a penitentiary sentence of 20 years.

In this appeal, the defendant makes 21 assignments of error, raising, among numerous other things, evidentiary, jury, witness, and instruction complaints. Other complaints relate to the rulings of the court on various motions, to the admission of certain items of evidence, and to the trial court’s conduct towards defense counsel. We find no reversible errors in this ease and affirm the conviction.

First, in considering an assignment of error challenging the legal sufficiency of the convicting evidence, we are bound by the law that a guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and establishes their credibility. It also displaces the presumption of a defendant’s innocence and raises a presumption of his guilt, thereby placing the onus upon him of showing that the evidence preponderates against the verdict and in favor of his innocence. Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385 (1960).

This case involves the rape of a twenty year old Middle Tennessee State University coed on the afternoon of February 26,1976, in Rutherford County, Tennessee. The victim was sitting in her car on the University campus between 1:15 and 1:30 p. m. when a black male pulled up in a pick-up truck, got out, approached the victim’s car, and at gun point forced her to drive to a remote area where he required her to lie on his jacket, after which he forcibly had sexual intercourse with her. After the act was accomplished, the man removed his T-shirt, which was used to “wipe” themselves, and the shirt was then thrown in the bushes. The victim was in her menstrual cycle and a “tampon” protective device had been removed by the man at the scene. They returned to the University campus where the man released her. The victim proceeded to her home, related the events to her father and mother, took a bath, and in company with her parents proceeded to the police station where she reported the events, giving a detailed description of her assailant and his pick-up truck.

The evidence leaves no question but that this victim was raped, and we find that the jury was fully warranted in finding that the defendant was her assailant. The victim identified the defendant in a lineup and at the trial as her assailant. She was in his presence for approximately one hour on that afternoon and was able to give a detailed description of his appearance, his clothing, and his vehicle to the police. When apprehended, the defendant’s personal appearance, his clothing, and his vehicle matched almost perfectly with those descriptions. Additionally, the victim identified the defendant’s pick-up truck in a police lot, and at the trial she identified a photograph of it. A jacket and a pair of shorts belonging to the defendant were tested and evidence was introduced that bloodstains were found on them. The police found at the scene of the crime the T-shirt and the “tampon” which had been testified about by the victim.

The defendant testified and denied any connection to this event. His explanation for the bloodstains on his jacket was that he had used that jacket in attempting to extract a fish hook from a “water dog” that he had caught while fishing earlier in the day. We note that expert testimony established that the bloodstains on the jacket were of human origin. It was the defendant’s position that on the date in question at some time after 12:00 noon he was at a “7-Eleven Market,” and sometime thereafter went home, arriving at his house about 2:20 p. m. He testified that he was not at the market after 1:30 p. m. He offered one witness who testified that he saw the defendant at the market between 1:00 and 1:30 p. m. on that date, but on cross-examination this witness conceded that he was not sure of the date or of the time. Considering the evidence in this record, and considering the time frames involved, the defendant could very well have been at the market at the time this witness referred to and still have committed the crime involved herein.

At any rate, the defendant’s alibi defense was rejected by the jury. The defense of alibi presents an issue of fact determinable by the jury, as the exclusive judges of the credibility of the witnesses testifying in support of that defense and of the weight to be given their testimony. Green v. State, 512 S.W.2d 641 (Tenn.Cr.App.1974).

Further, the identity of the defendant as the person who raped this victim was a question of fact for the determination of the jury, upon consideration of all the competent proof. Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150 (1965).

Because of the positive and certain testimony of the victim in this case, the jury could have based a conviction on her testimony alone, if they chose to believe her and not the defendant. Bolin v. State, 219 Tenn. 4, 405 S.W.2d 768 (1966). In Bolin, the court said:

“Belief or disbelief of the victim is a decision which is within the jury’s exclusive province, and it is obvious from their verdict that they believed the victim and not the defendant. At this appellate level we must adopt this evaluation of credibility as our own in accordance with established and well founded rules of trial and appellate practice.” 219 Tenn. at 11, 405 S.W.2d at 771.

The evidence fully supports the jury’s finding in this case. It does not preponderate against the verdict. Gulley v. State, 219 Tenn. 114, 407 S.W.2d 186 (1966). Also, the defendant’s relatively light sentence in this serious case is within the limits allowed by law for this offense, T.C.A. § 39-3702, and, therefore, it cannot be said that the jury’s verdict shows passion, prejudice or caprice, as is insisted by the defendant. Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963). We overrule the defendant’s assignments pertaining to the evidence.

In three of his assignments, the defendant alleges two basic propositions to the effect that (1) the State suppressed and destroyed a tape recording of an interview between the defendant and the investigating officer, Detective Jim Cook, and that (2) the defendant was not allowed to inspect a written statement allegedly made by the victim to Detective Cook. The defendant argues that this alleged tape recording and statement would have been of an exculpatory nature. We find no merit to these assignments.

Regarding the first proposition, apparently, tape recordings were made of the two interviews with the defendant. The defendant was furnished with a copy of the second tape, but the first tape, containing the defendant’s initial interview, had been lost. The trial court held an exhaustive hearing on the missing tape and interrupted the trial to bring in numerous witnesses in an attempt to find it, or in the alternative to establish the reasons for its absence. The evidence is convincing that this tape was accidentally lost, mislaid or misfiled by the police department. There is no indication whatsoever that its loss was occasioned by any willful or contrived action by the State or its agents. Moreover, the record documents that there was nothing on the missing tape that was not contained in the second tape which was provided to the defendant. The defendant did not produce any evidence to the court nor in his testimony to the jury to show that the missing tape contained any exculpatory matters or any other information that would have been beneficial to him. Certainly, it could have contained nothing regarding the voluntariness of his statement, as at no time did the defendant ever indicate that he had been coerced or mistreated by the police. In fact, he testified that Detective Cook had not pressured him in any way. Also, out of an abundance of precaution, the trial judge ruled that the State could not introduce any evidence about the missing tape, but that he would allow the defendant full range to develop any evidence he desired about its contents. We can see no way in which the court could have been more fair to the defendant in his ruling on this question, and we find nothing in this record to show that any prejudice resulted to the defendant because of the absence of this tape.

Regarding the second proposition, apparently, the defendant concluded from testimony at the preliminary hearing that the victim had given a written statement to Detective Cook. The confusion here appears to have been brought about over certain written notes which Detective Cook had made of that interview. A copy of these notes was furnished to the defendant. At the present trial, Detective Cook and the victim both testified that she did not sign any written statement. Thus, if it did not exist, it could not be produced.

Likewise, we find no merit to the defendant’s contention that the court erred in its ruling on the defendant’s motion for a change of venue.

The trial court held two pre-trial hearings on this question and numerous witnesses were heard. The evidence strongly supports the court’s finding that there was no great excitement about this case in Rutherford County. The victim of this crime was not a resident of that county but resided in an adjoining county. The offense occurred on February 26, 1976, and the trial was commenced on September 13,1976. As was shown during the examination of the jurors on voir dire, the initial publicity, due to the lapse of time, had left little impression on the jurors’ minds about the crime. There was no difficulty in obtaining a jury in this case. The testimony of the jurors showed that an impartial jury was selected. Also, the trial developments, and the reasonable sentence fixed for the defendant, affirmatively show that the defendant’s apprehensions of racial prejudice were not well founded. We find no abuse of discretion in the court’s denial of a change in venue. Swain v. State, 219 Tenn. 145, 407 S.W.2d 452 (1966).

Next, we find that the search of the defendant’s house, pursuant to a search warrant, was legal.

At the trial, the defendant’s complaint about the search warrant was that it was not returned properly. We have examined that document and find that it shows on its face that a proper return was made before the general sessions judge. Further, the defendant argues in his brief that the seized items were not retained in the custody of the issuing magistrate. This is not a tenable contention. Any defect in the ministerial functions involved in the return of a search warrant and the handling of the seized items cannot vitiate the validity of a lawful search. Squires v. State, 525 S.W.2d 686 (Tenn.Cr.App.1975). A proper chain of custody of the seized items was shown in this case and that was sufficient. Further, from our examination of the search warrant, we find that it comports with the two-pronged test enunciated by the Aguilar-Spinelli cases. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. U. S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); see also State v. Parker, 525 S.W.2d 128 (Tenn.1975). We hold that the trial judge properly admitted the seized items into evidence.

Equally unmeritorious are the defendant’s seven assignments regarding his jury complaints.

After a hearing on the selection procedures used by the Rutherford County Jury Commission in making up the jury panels, the trial judge found no irregularity, and that the jury panels had been lawfully selected. We find that the record supports this ruling. There was no showing that blacks or any other class of citizens were systematically excluded from the jury panels. The proof showed that the names of a few black, as well as white, teachers and ministers had been removed from the jury list. T.C.A. § 22-103 exempts from jury service persons in these occupations. However, these exemptions are personal to the individual, to be claimed or waived by such person alone, East v. State, 197 Tenn. 644, 277 S.W.2d 361 (1955), and while the jury commission was incorrect in removing such names on their own initiative, this technicality cannot rise to the level of documenting a claim of systematic exclusion of blacks from the jury list. Testimony showed that the names that go into the jury box are placed there without regard to any particular race. In fact, most of the names are unknown to the jury commissioner. Black citizens were summoned and considered for jury duty in the present case.

In State v. Jefferson, 529 S.W.2d 674 (Tenn.1975), the Supreme Court adopted Judge Walker’s excellent opinion written for the Court of Criminal Appeals, and this opinion dealt with similar jury complaints as are raised herein.

Judge Walker in his opinion had this to say regarding the question of racial imbalance on jury panels:

“A defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the jury roll from which petit jurors are drawn. Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.” 529 S.W.2d at 680.

Regarding the defendant’s complaint that the jurors underwent voir dire examination in the presence of each other, the defendant concedes in his brief that there is no merit to this assignment. The trial court followed proper procedures in this regard. State v. Jefferson, supra. Also, the court did not abuse its discretion in not excusing two jurors who had some connection with Middle Tennessee State University. Vines v. State, 190 Tenn. 644, 231 S.W.2d 332 (1950). The University, as an entity, had no connection with this case. The fact that the victim was a student there and was abducted from its campus would not, by itself, disqualify from jury service a teacher at the University or one of the jurors whose wife worked there. There was nothing in the voir dire of these two jurors to show that they should have been disqualified. To the contrary, it showed that they were qualified and could act as impartial jurors in this case.

We overrule the defendant’s belated lineup complaint. The defendant raised no objection to the victim’s identification of the defendant or of the procedures used at the lineup. Additionally, the record affirmatively shows that the lineup was properly held. There is not the slightest hint of a taint in the victim’s identification of the defendant.

In another assignment, the defendant says that the investigation conducted by Detective Jim Cook was based on vengeance and malice towards the defendant. The defendant’s counsel himself brought before the jury that the defendant was alleged to have been implicated in another assault on another victim, and that after this alleged assault occurred, Detective Cook married that victim. Detective Cook denied in his testimony that he had any prejudice against the defendant, and even the defendant himself conceded that Detective Cook had treated him fairly in their interviews. At any rate, it was the jury’s duty to weigh this evidence in their consideration of Detective Cook’s testimony. In passing, we would note that a substantial part of Detective Cook’s testimony was corroborated by other witnesses. We find no error.

The defendant complains that the trial judge threatened and pressured defense counsel at the trial. The defendant’s brief is totally inadequate in this regard. He has not described or argued in his brief any facts or details to document this claim. We have read this record from front to back, and the comments that the defendant is apparently referring to are nothing more than harmless banter between the bench and counsel that are not unusual in long hard fought trials. From our review of the record, we find that it is replete with constant objections on the part of defense counsel, some of them being warranted, and many others being of a frivolous nature. Certainly, the trial judge’s patience was sorely tried in this case. Notwithstanding, he exhibited great restraint and went out of his way to afford courtesy to the defendant and his counsel. The trial judge, on several occasions, interrupted the trial to allow the defendant to interpose and develop new issues, and he allowed full opportunity to the defendant to subpoena new witnesses. The record shows that he was lenient and patient with the defendant’s counsel and took considerable pains to insure that the defendant received a fair trial. We find the defendant’s complaints against the trial judge to be without merit.

The defendant alleges error in Detective Cook not sending to the State laboratory for analysis of the T-shirt and “tampon” found at the scene of the crime. Detective Cook’s testimony on this point and his reasons for not doing so were developed before the jury. It was the jury’s function to weigh Detective Cook’s testimony in light of that evidence. Also, if the defendant wanted to have these items tested, it was incumbent upon him to make a timely request. This was not done. We find no error. State v. Gaddis, 530 S.W.2d 64 (Tenn.1975).

The defendant’s contention that he was not notified of his arraignment date is frivolous. Equally so is his argument that the trial judge erred in not charging on the parole provisions of T.C.A. § 40-2707, as is evidenced by his concession that the point is without merit. The trial judge correctly followed the mandates of Farris v. State, 535 S.W.2d 608 (Tenn.1976) in not charging on these parole considerations. We point out that neither of the above complaints were raised at the trial level.

In his 21st assignment of error, the defendant complains about the testimony of Ms. Janet Estes, the serologist who testified in this case. The trial judge found that this witness was an expert in her field. We find that he did not abuse his discretion in admitting her testimony. The defendant insists that her testimony is contrary to the information contained in the State laboratory written reports. We have compared her testimony with the laboratory report which was submitted and read during the testimony of Detective Cook, and we find that it is consistent. Also, we point out that the defendant offered no objection to this witness’ testimony at the trial. The complaint is without substance.

We note that in the final paragraph of the defendant’s brief, he states: “Significantly, the transcript in this case does not have any notice as to the business in the jury room T, pages 867-868.”

We are unable to determine from this comment just what complaint is being made. A review of the record at the page cited by the defendant indicates that the trial judge, the attorney general, the defendant’s counsel and the court reporter were admitted to the jury room at which time the following colloquy occurred:

“THE COURT: Did you want to see me?
JUROR: Yes, Sir.
THE COURT: Is it a question of law or whether or not you want to go to lunch now? If it is about whether you want to take a break, that is all right.
JUROR: Your Honor, I think the question is how we are to select a foreman.
THE COURT: The first thing you do is select your foreman, and after that it is up to you all as to how you deliberate. That is all I can say to you.”

As stated, we do not know what complaint the defendant is making, but we note that the record suggests that the defendant was not present during these proceedings. At least, the record does not show it if he was. In passing, we deem it necessary to point out that any proceedings involving the jury after it has retired for deliberations should be conducted in open court and in the defendant’s presence. However, because no objection was made to these proceedings, and due to defense counsel’s presence and the inconsequential nature of the subject matter discussed at that proceeding, we find that any error that could be said to be present was harmless. The defendant has alleged no way in which he has been prejudiced and we find that he was not. We re-emphasize that all contacts with deliberating jurors should be conducted in open court with all parties and their counsel present.

We find no reversible errors in this case. We overrule the defendant’s assignments of error, and the judgment of the trial court is affirmed.

TATUM and BYERS, JJ., concur.


author: POPE, Justice. GREENHILL, Chief Justice, STEAKLEY, Justice,

text:
    Hubert SPRADLING, d/b/a Sprad’s Boat Town, Petitioner, v. N. D. WILLIAMS, Jr., Respondent.
    No. B-6912.
    Supreme Court of Texas.
    May 3, 1978.
    Rehearing Denied June 7, 1978.
    Morris, Graves & Smith, Jerry V. Pennington, Orange, for petitioner.
    Adams & Adams, Frank A. Adams, Beaumont, for respondent.
   POPE, Justice.

This case concerns the instructions in the charge for a deceptive trade practices case. N. D. Williams sued Hubert Spradling, doing business as Sprad’s Boat Town. Williams alleged that Spradling made deceptive representations about a pleasure boat he purchased from Spradling. The trial court rendered judgment for Williams on a verdict of the jury, and the court of civil appeals affirmed with one justice dissenting. Tex.Civ.App., 553 S.W.2d 143. We affirm the judgments of the courts below.

In 1974 Williams purchased a thirty-foot Sportscraft pleasure boat from Spradling. The jury made findings that (1) Williams agreed to pay Spradling $10,800 and trade in his twenty-three foot Sportscraft boat which (2) was worth $5,500; (3) the value of the Sportscraft that was delivered to Williams was $12,000; (4) Spradling represented the Sportscraft to be in the same condition as a new boat except for thirty hours of use of the engines; (5) the representation was a deceptive trade practice, and (6) Williams relied on the representation in purchasing the boat; (7) Spradling represented to Williams that he was getting a substantial price reduction because the boat was a factory demonstrator; (8) the representation was a deceptive trade practice; (9) Williams relied on the representation; (10) Spradling represented that the suggested factory retail price of the boat was $22,-500; (11) the representation was a deceptive trade practice; (12) on which Williams relied in purchasing the boat; (13) Spra-dling represented that the boat in question was a 1973 model boat built in 1973; (14) the representation was a deceptive trade practice; and was (15) relied on by Williams in purchasing the boat. The charge contained this instruction concerning‘the term “deceptive trade practice:”

Any false, misleading or deceptive acts or practices in the conduct of any trade or commerce. You are instructed that the term “false, misleading, or deceptive acts or practices” means an act or series of acts which has the capacity or tendency to deceive an average or ordinary person, even though that person may have been ignorant, unthinking or credulous. You are further instructed that the term “false, misleading, or deceptive acts or practices” includes, but is not limited to, the following acts:
1. Representing the boat sold to be a 1973 model boat if it was an older model boat.
2. Representing that the boat sold was built in 1973 if it was built in any year prior to 1973.
3. Representing the boat sold to be in a new, or almost new condition if it was deteriorated, reconditioned, reclaimed or secondhand.
4. Making false or misleading statements concerning the reasons for, existence of, or amount of price reductions.
5.Making false or misleading statements concerning the manufacturers’ suggested retail price of the boat.

The trial court submitted the issues to the jury in clusters of three issues. The first issue in each cluster asked whether a specific act or practice happened, the second asked whether it was a deceptive trade practice as that term was defined by the court, and the third asked whether the customer relied upon the deceptive trade practice. Spradling is before this court on only two points, both of which relate to the trial court’s instructions to the jury. One point complains of the trial court’s instruction that an act is false, misleading, or deceptive if it had the capacity to deceive “an ignorant, unthinking, or credulous person.” He argues that this reduced the plaintiff’s burden of proof. The argument is appealing, but we are dealing with a cause of action which the legislature created. We quote the provision of subsection 17.46(c) as it was at the time of suit.

It is the intent of the legislature that in construing Subsection (a) of this section the courts to the extent possible will be guided by Subsection (b) of this section and the interpretations given by the Federal Trade Commission and federal courts to Section 5(a)(1) of the Federal Trade Commission Act [15 U.S.C.A. 45(a)(1)]. [Emphasis added.]

As we said in reference to the almost identical provision of the prior deceptive trade practices act, it “gives us directions for interpreting the statute.” State v. Credit Bureau of Laredo, Inc., 530 S.W.2d 288, 293 (Tex.1975). As we did in the Credit Bureau of Laredo case, we look to federal precedents to see if the federal courts have approved the interpretation.

Section 45(a)(1) of Title 15 U-.S.C.A. declares certain unfair methods of competition unlawful and says:

(a)(1) Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are declared unlawful.

Since 1910, the federal courts have applied the standard that was first expressed in Florence Mfg. Co. v. J. C. Dowd & Co., 178 F. 73, 75 (2d Cir. 1910), in these words:

The law is not made for the protection of experts, but for the public — that vast multitude which includes the ignorant, the unthinking and the credulous, who, in making purchases, do not stop to analyze, but are governed by appearances and general impressions.

The test, or slight variations of it, has been many times approved. See Federal Trade Comm’n v. Standard Education Society, 302 U.S. 112, 116, 58 S.Ct. 113, 82 L.Ed. 141 (1937); Helbros Watch Co. v. F. T. C., 114 U.S.App.D.C. 63, 310 F.2d 868 (1962); Bankers Securities Corp. v. F. T. C., 297 F.2d 403, 405 (3d Cir. 1961); Niresk Industries, Inc. v. F. T. C., 278 F.2d 337, 342 (7th Cir.), cert. denied, 364 U.S. 883, 81 S.Ct. 173, 5 L.Ed.2d 104 (1960); Harsam Distributors, Inc. v. F. T. C., 263 F.2d 396, 398 (2d Cir. 1959); Charles of the Ritz Distributors Corp. v. F. T. C., 143 F.2d 676, 679 (2d Cir. 1944); Stanley Laboratories, Inc. v. F. T. C., 138 F.2d 388, 392-93 (9th Cir. 1943); Aronberg v. F. T. C., 132 F.2d 165, 167 (7th Cir. 1942). Bragg, Now We’re All Consumers! The 1975 Amendments to the Consumer Protection Act, 28 Baylor L.Rev. 1, 10-14 (1976); Maxwell, Public and Private Rights and Remedies Under the Deceptive Trade Practices—Consumer Protection Act, 8 St. Mary’s L.J. 617, 620-22 (1977); but see Lynn, Anatomy of a Deceptive Trade Practices Case, 31 Sw.L.J. 867, 869-74 (1977).

Spradling’s only other point complains of the instruction “that the term ‘false, misleading, or deceptive acts or practices’ includes, but is not limited to, the following acts:” which was followed by a list of the five acts or practices which plaintiff Williams relied upon. It is our opinion that all of that part of the instruction was erroneous. Section 17.46 of the Consumer Protection Act largely governs what issues should be submitted:

Sec. 17.46 Deceptive Trade Practices Unlawful
(a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
(b) The term “false, misleading, or deceptive acts or practices” includes, but is not limited to, the following acts:
[This section then listed twenty specific acts or practices, but two additional items have been added to the list of prohibited acts since the trial of this case. See Tex.Bus. & Com.Code Ann. § 17.46(b)(21), (22) (Supp.1978). The list of specified acts is not an exclusive list.]

Subsection (a) of section 17.46 states that an act or practice that is false, misleading or deceptive is an unlawful or deceptive trade practice. Subsection (b) then contains a list of specific acts or practices which the law identifies as false, misleading or deceptive. If any one of those listed acts or practices is found factually to have happened, it is by law an unlawful deceptive trade practice because subsection 17.46(b) makes it unlawful. Since the statute makes the act a deceptive trade practice, the jury should not be asked if one of the listed acts was in fact deceptive.

Looking at the verdict in the case before us, we find that there is at least one jury finding of a deceptive act or practice which is included among those listed in subsection 17.46(b). That finding established the act or practice as a deceptive trade practice as a matter of law under subsection 17.46(a). Jury finding number thirteen is the same act or practice listed in subdivision 7 of subsection 17.46(b):

(7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;

The Act explicitly states that misrepresenting the model of an article is a proscribed deceptive act, and it was for that reason unnecessary for the trial court to instruct the jury that it was a deceptive act or to submit issue fourteen which permitted the jury to determine whether, as a fact, it was.

Spradling’s defense to that finding was that the year model of the boat was immaterial, because an ordinary consumer would give no consideration to the year model in purchasing a secondhand boat. He maintains that the 1972 model is essentially the same as the 1973 model. On the other hand, plaintiff Williams called Bill Lawrence, a local boat dealer, as an expert witness. Lawrence testified that he sold boats commercially and that he had worked for a boat manufacturer, that production of 1972 model boats began during the last three months of 1971, and that it ended after eight or nine months in 1972, at which time the manufacture of 1973 models began. There is evidence that shows there was a difference of over three hundred dollars between the list price of the 1972 model Sportscraft and the 1973 model. Defendant Spradling’s expert witness testified Sportscraft had model years like the automobile industry. We conclude that there is evidence that Sportscraft pleasure boats were manufactured according to distinct model years and the plaintiff, Williams, therefore is entitled to judgment on the finding about misrepresentation of the year model which by law was a deceptive practice.

An act or practice which is not among those listed in subsection 17.46(b) requires a jury issue to determine as a fact whether it was deceptive. The deceptive acts or practices listed in subsection 17.46(b) do not form an exclusive list because that subsection states that the classification of condemned practices “includes, but is not limited to,” the list. One who alleges and proves an unlisted act or practice which he contends is a deceptive trade practice, does not have the benefit of subsection 17.46(b) which declares the act or practice to be a false, misleading or deceptive act or practice. One must, in the instance of an unlisted act or practice, therefore, obtain a finding not only (1) that the act or practice occurred, but (2) that it was a deceptive trade practice.

The jury, by findings to special issues 4 and 10 found that Spradling had done an act or practice which was not included among the items listed in subsection 17.46(b). The court by its instructions numbered respectively as items 3 and 5 told the jury that the acts and practices asked about in issues 4 and 10 were deceptive. After telling the jury that those acts and practices were deceptive, the court nevertheless asked the jury by special issues 5 and 11 whether the acts and practices were deceptive. We, therefore, have the court telling the jury as a matter of law that the acts and practices were deceptive and the court then asking the jury if the same acts were in fact deceptive.

If subsection 17.46(b) declares the practice unlawful, there is no need for an issue which asks if it is deceptive. If subsection 17.46(b) does not list the act, the court should not instruct the jury that the act is deceptive, but should leave that to an inquiry to the jury. We approve the first two sentences of the court’s instruction and disapprove the rest of the instruction. See Ivan’s Tire Service Store, Inc. V. Goodyear Tire & Rubber Co., 86 Wash.2d 513, 546 P.2d 109 (1976), adopting opinion of 10 Wash.App. 110, 517 P.2d 229, 238 (1973); cf. Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975), criticized in Note, 54 N.C.L.Rev. 963 (1976). Since there was a finding supported by the evidence of at least one act or practice that is included in the list of subsection 17.46(b), the error in the instruction about the unlisted acts or practices is harmless.

The judgments of the courts below are affirmed.

GREENHILL, C. J., concurs with opinion.

STEAKLEY, J., dissents with opinion.

GREENHILL, Chief Justice,

concurring.

The Court’s opinion relates that the statute involved has “listed” deceptive trade practices, and also “unlisted” deceptive trade practices. That is, the Legislature has provided a laundry list of some twenty-one listed and specified unfair trade practices, — which the Court’s opinion says are now unlawful.

The Court’s opinion also relates that the unlawful acts listed “do not form an exclusive list because that subsection states that the classification of condemned practices ‘includes, but is not limited to’ the list.”

I should like to point out that the Court’s opinion makes no holding with regard to penal damages for the violation of an unlisted or unspecified act.

I have grave doubts about the constitutionality of penal damages for the violation of “unlisted” and unspecified unlawful acts. It is one thing for the Legislature to create a cause of action in tort or contract for actual damages caused by reliance on unfair and deceptive trade practices; but it is another thing for it to create a penalty of triple damages for the violation of unwritten, unlisted and unspecified unlawful acts.

STEAKLEY, Justice,

dissenting.

I would hold that the instruction of the trial court pertaining to unlisted acts or practices, discussed and found to be erroneous by the majority, was reversibly harmful, and not, as held by the majority, harmless error. I will write no more except to state that as to this I agree with the writing of the dissenting Justice in the Court of Civil Appeals under the heading “II. The Erroneous Charge.” 553 S.W.2d 143, at 147.

      . In 1977 the legislature amended subsection (c) to provide that in private damages actions, the courts should look to interpretations of the federal courts, but in the injunctive actions by the attorney general’s office, the courts should look to interpretations by the federal courts and the Federal Trade Commission. See Tex. Bus. & Com.Code Ann. § 17.46(c)(1), (2) (Supp. 1978).

      . Tex.Rev.Civ.Stat.Ann. art. 5069-10.02(b) [repealed 1973], provided that It is the intent of the legislature that in construing Section (a) of this Article, the courts, to the extent possible, will be guided by Section (b) of Article 10.01 of this Chapter [an enumerated list of practices] and the interpretations given by the Federal Trade Commission and the Federal Courts to Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C., 45(a)(1)). Nothing in this Chapter either enlarges or diminishes the rights of parties in private litigation. [Emphasis and bracketed commentary supplied.]


author: GREENHILL, Chief Justice.

text:
    NATIONAL LLOYDS INSURANCE COMPANY, Petitioner, v. George McCASLAND, Respondent.
    No. B-6969.
    Supreme Court of Texas.
    May 10, 1978.

      Haley, Fulbright, Winniford, Bice & Davis, Maurice G. Walton and Sherwin A. Winniford, Waco, for petitioner.
    J. C. Jacobs, Corsicana, for respondent.
   GREENHILL, Chief Justice.

This is a suit to recover on a fire insurance policy issued by National Lloyds Insurance Company [hereinafter “National Lloyds” or “the company”]. National Lloyds defended the suit by alleging that the policy was void because the value of the insured property had been willfully or fraudulently misrepresented, in violation of the policy provisions. The trial court upheld jury findings that such misrepresentation had occurred, and judgment was rendered for the company. The court of civil appeals reversed and remanded the case, holding that, because National Lloyds had not complied with the requirements of Article 21.35 of the Texas Insurance Code, there was no admissible evidence to support the jury findings. 553 S.W.2d 6.

National Lloyds has appealed to this court, urging that the court of civil appeals erred in basing its judgment on Article 21.35. One reason asserted for such error is that any complaint arising under that statute had been waived. We agree with this contention and reverse the judgment of the court of civil appeals. Because that court did not pass on a point of error concerning the factual sufficiency of evidence, the cause is remanded to the court of civil appeals.

Before the facts of this case are reviewed, a brief look at Article 21.35 of the Texas Insurance Code is in order. That statute reads in pertinent part as follows:

Except as otherwise provided in this code, every contract or policy of insurance issued or contracted for in this state shall be accompanied by a written, photographic or printed copy of the application for such insurance policy or contract, as well as a copy of all questions asked and answers given thereto.

A number of Texas cases have construed this statute and its predecessors, and the law is now well settled that failure to comply with the statute renders evidence of representations made in applying for insurance inadmissible into evidence. Johnson v. Prudential Insurance Co., 519 S.W.2d 111 (Tex.1975); Harris v. Allstate Insurance Co., 249 S.W.2d 669 (Tex.Civ.App.—Texarkana 1952, writ ref’d.). There are also a number of decisions indicating that the statute was intended to be mandatory. American Surety Co. v. West State Bank, 4 S.W.2d 312, 313 (Tex.Civ.App.—Waco 1928, writ ref’d); Southwestern Surety Insurance Co. v. Hico Oil Mill, 229 S.W. 479, 482 (Tex.Com.App.1921, jdgmt. adopted); American Indemnity Co. v. Baldwin Motor Co., 19 S.W.2d 848, 849 (Tex.Civ.App.—Texarkana 1929, writ dism’d.). The cases have not, however, directly addressed the problem of a total failure to object to evidence, on the basis of the statute, at any stage of the trial court proceedings. This is the question presently before us.

The fire insurance policy involved in this case covered a frame house in the rural community of Chatfield, Texas. The house sold for $500 in August of 1974. On May 19,1975, the house was conveyed by general warranty deed to J. Tobin Moore. The consideration recited in the deed was a Vendor’s Lien note in the amount of $11,500, executed by Moore in favor of George McCasland. This note was additionally secured by a deed of trust from Moore to McCasland, and the deed of trust required Moore to obtain fire insurance on the property. McCasland instructed Moore to insure the property for at least $11,500, the amount of McCasland’s interest as mortgagee. Moore contacted an agent of National Lloyds, and a fire insurance policy in the amount of $12,500 was issued on the property. The policy, which was also dated May 19, 1975, named Moore as the insured and provided that any loss would be payable to McCasland, as mortgagee, to the extent of his interest at the time of the loss. It is undisputed that no application for insurance was attached to this policy.

The house was completely destroyed by fire in June of 1975, and McCasland made demand upon National Lloyds for payment of $11,500 under the policy. National Lloyds denied liability on the basis of a policy provision stating, “This entire policy shall be void if . the insured has willfully concealed or misrepresented any material fact or circumstance concerning this insurance, or the subject thereof. . . ” The Company took the position that the house had been fraudulently or intentionally overvalued, and no proceeds were paid on the policy. McCasland then filed this suit.

The trial was to a jury, and National Lloyds introduced testimony designed to show that Moore and McCasland had intentionally overvalued the property when application for insurance was made. None of this testimony was objected to by McCas-land as being inadmissible under Article 21.35 of the Texas Insurance Code. Sixteen special issues were submitted to the jury, and all were answered favorably to National Lloyds.

Broadly summarized, the jury found that when Moore made application for the insurance policy in question, he grossly overvalued the actual cash value of the property and falsely represented its value to be $12,-500; that Moore knew he had grossly overvalued the property and had made a false representation; that he intended National Lloyds’ agent to rely on his false representation and gross overvaluation; that National Lloyds’ agent did so rely and would not have written the policy except for the false representation and gross overvaluation. The jury also found, in Special Issues 12 and 14, that George McCasland was aware (a) that the value of the property would be falsely represented and (b) that the property would be grossly overvalued, when application for insurance was made. In Special Issues 13 and 15, the jury found that McCasland intended that the false representation and gross overvaluation be relied upon by National Lloyds’ agent in issuing the policy.

McCasland objected to the submission of issues 12 through 15 on the grounds that there was no evidence or insufficient evidence to support jury answers thereon. McCasland renewed his “no evidence” and “insufficient evidence” objections in his motion for judgment notwithstanding the verdict; and, following the trial court’s rendition of judgment in favor of National Lloyds, he made similar points in his motion for new trial. Again, none of these motions or points mentioned the inadmissibility of evidence under the Texas Insurance Code.

McCasland brought five points to the court of civil appeals. Four of them again urged that there was no evidence to support the jury verdict.

In his discussion of these points, McCas-land made two arguments. First he asserted that there was simply no evidence that McCasland, the mortgagee, was involved in any false representations or gross overvaluation of the property. Second, he argued for the first timé that because no application for insurance was attached to the policy, all of the evidence supporting the jury verdict was inadmissible under Article 21.-35. The court of civil appeals expressly overruled McCasland’s first argument and held that the evidence, if admissible, constituted some evidence to support the jury findings.

The court of civil appeals agreed, however, with McCasland’s second theory that “evidence of Moore’s misrepresentations was not admissible on the trial as a matter of law.” The court recognized that McCas-land had raised Article 21.35 for the first time on appeal; but because the statute was viewed as being mandatory, the court concluded that McCasland’s “no evidence” objections were sufficient to preserve his complaint under the statute. We disagree.

The Texas Rules of Civil Procedure, and a great number of Texas cases, describe certain requirements for the preservation of error on appeal.

There are two places at which a waiver might apply. The first is a failure to object when the evidence was introduced. The second is a failure to call the trial judge’s attention to the matter in a motion for new trial. National Lloyds’ argument before this court is not directed toward the first; and this opinion will deal only with the second.

When the error complained of relates to the admission of evidence, the cases have clearly held that the error must be raised in a motion for new trial. Garrett v. Standard Fire Insurance Co., 541 S.W.2d 635, 638 (Tex.Civ.App.—Beaumont 1976, writ ref’d n.r.e.); Goldring v. Goldring, 523 S.W.2d 749, 753 (Tex.Civ.App.—Port Worth 1975, writ ref’d n.r.e.); Allandale Nursing Home, Inc. v. John Bremond Co., Inc., 514 S.W.2d 958, 959 (Tex.Civ.App.—Austin 1974, writ ref’d n.r.e.); Zeek v. Gaddy, 287 S.W.2d 490, 492 (Tex.Civ.App.—Austin, 1956, writ ref’d n.r.e.). While it is true that McCasland did not directly urge to the court of civil appeals that the trial court erred in admitting evidence, his complaint was that the trial court erred in basing its judgment on evidence that should have been held inadmissible. In either type of complaint, the trial court must have had some opportunity to rule on the admissibility of evidence before the question of such admissibility can become a ground of complaint on appeal. This result is clearly dictated by the Texas Rules of Civil Procedure.

' At the time of the trial in question Rule 320 provided that “Each motion for new trial . . . shall specify each ground on which it is founded, and no ground not specified shall be considered.” In addition, Rule 374 stated, “A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required, shall be considered as waived.” As noted above, McCasland’s motion for new trial contained no assignment which in any way urged error on the ground of Article 21.35 of the Texas Insurance Code. There were adequate objections that there was no evidence, or that the evidence had insufficient probative weight to support a judgment against McCasland; but such objections are simply too broad to encompass a narrow complaint that evidence was inadmissible under a given statute. This result is also dictated by the Texas Rules of Civil Procedure, as well as by a number of cases.

Rule 321 expressly provides,

Each ground of a motion for new trial . shall briefly refer to that part of the ruling of the court, charge given to the jury, or charge refused, admission or rejection of evidence, or other proceedings which are designated to be complained of, in such way as that the point of objection can be clearly identified and understood by the court. (Emphasis added).

Rule 322 goes on to provide that “Grounds of objection couched in general terms . shall not be considered by the court.” This court has held on a number of occasions that when a motion fails to present a question in such a way that the trial court can clearly identify and understand it, the complainant is not entitled to raise the question in the court of civil appeals. Meyer v. Great American Indemnity Co., 154 Tex. 408, 279 S.W.2d 575, 579 (1955); Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407, 409 (1943). Further, when error is urged on one basis in the trial court, and on an entirely new and different basis in the court of civil appeals, the latter ground of complaint is not properly preserved for review. Southwest Title Insurance Co. v. Plemons, 554 S.W.2d 734 (Tex.Civ.App.—Dallas 1977, writ ref’d n.r.e.); Krottinger v. Marchand, 252 S.W.2d 217 (Tex.Civ.App.—Fort Worth 1952, no writ); Dorsey v. Younger Brothers, Inc., 216 S.W.2d 294 (Tex.Civ.App.—Galveston 1948, no writ).

In the present case, neither McCasland’s motion for new trial, nor any of the other objections he presented to the trial court, in any way indicated to the court, or led the court to understand, that his ground of complaint lay in Article 21.35 of the Texas Insurance Code. His complaint under that statute was therefore waived, and the court of civil appeals erred in considering it. Because the court’s judgment of reversal was directly based on such consideration, the error was reversible.

The harmful effect of the court’s consideration of Article 21.35 is further demonstrated by National Lloyds’ remaining points of error. The company urges that it has a defense to Article 21.35 by virtue of being a “Lloyds plan” insurance company. While we need not pass on this contention, the points do demonstrate the dangers of considering matters for the first time on appeal. The question of the company’s status as a Lloyds plan company was in no way developed in the trial court.

The judgment of the court of civil appeals is reversed. Because the court did not address McCasland’s fifth point of error, which urged that the evidence was factually insufficient to support the trial court judgment, the case is remanded to the court of civil appeals. Stanfield v. O’Boyle, 462 S.W.2d 270, 272-3 (Tex.1971).

      . All the references to Rules are to Texas Rules of Civil Procedure (1976). It should be noted that Rule 320 was amended, and Rule 374 was repealed, effective January 1, 1978.
      Under the amended Rule 324, “a motion for new trial shall not be a prerequisite to the right to complain on appeal . We note, without comment, that the amended rule also provides that: “Notwithstánding the forgoing, it shall be necessary to file a motion for new trial in order to present a complaint which has not otherwise been ruled upon.” The admissibility of the evidence in question, not objected to, had not been previously ruled upon.


author: STEAKLEY, Justice.

text:
    John BECK et al., Petitioners, v. Sylvia Irene SHEPPARD (Pulera), et al., Respondents.
    No. B-7225.
    Supreme Court of Texas.
    May 17, 1978.

      Heard L. Floore and Wallace Brady, Fort Worth, Touchstone, Bernays & Johnston, Webber W. Beall, Jr., Dallas, for petitioners.
    Mock & Fleniken, William J. Fleniken, Jr., Fort Worth, for respondents.
   STEAKLEY, Justice.

John Beck was the owner of a saddle horse named Duke who was pastured on a farm owned by Leonard Boyd. At about dusk on October 17, 1972, a Volkswagen automobile driven by Sylvia Irene Sheppard, in which her daughter llene was a passenger, collided with Duke on U.S. Highway 377, south of Denton, Texas. Mrs. Sheppard and her child suffered physical injuries, the automobile was demolished, and the horse was killed.

The suit at bar was subsequently filed by Mrs. Sheppard on her behalf and that of her daughter against John Beck; later, by amended petition, Leonard Boyd was also sued. Trial before a jury commenced on November 1, 1976. After Mrs. Sheppard rested her case, the trial court instructed a verdict that she take nothing against Beck and Boyd. On appeal, the Court of Civil Appeals affirmed the trial court judgment in favor of Boyd but reversed the judgment as to Beck and remanded the cause to the trial court. 557 S.W.2d 578.

We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

Boyd is the owner of a farm in Denton, Texas, part of which borders on U.S. Highway 377. Boyd raises horses on his land and maintains a barn and pastures for that purpose; he also permits friends to stable their horses on the farm. Beck was one of his friends doing so. Under the arrangement between them, Boyd had no responsibility with respect to the care of Duke.

On October 17, 1972, Beck went to the farm to feed Duke. It was Beck’s practice to do so late in the afternoon and normally the horse would be out of the pastures and at the barn. On this occasion Beck went out somewhat earlier than usual because, he said, he felt he was taking the flu. Duke was not waiting for him at the barn. Another horse owner was riding his horse, and Beck asked him to run Duke up to the barn. The friend returned from his ride and reported to Beck that he did not see the horse. The friend then told Beck to go home and that he would feed Duke when he came to the barn. Beck put out feed for the horse and departed at about 6:30 P.M. The collision with Duke occurred later, at about 8:00 P.M. There is no evidence that either Beck or Boyd knew that Duke was out of the pastures.

The propriety of two presumptions is to be considered under the rulings of the Court of Civil Appéals and the argument advanced by Mrs. Sheppard. The Court of Civil Appeals first presumed that the Boyd premises were of such nature that Beck would have seen Duke from the barn, hence there was a fact issue as to whether Beck was negligent in failing to make a further search. The court applied this presumption notwithstanding its recognition that the record was “substantially silent” as to the nature of the land forming the Boyd pastures, i. e., whether level or hilly and whether or not Duke could have been in the pasture while not visible to Beck at the barn or seen by the friend on his ride. A presumption is “a rule which ‘draws a particular inference as to the existence of one fact, not actually known, arising from its usual connection with other particular facts which are known or proved.’ ” Lobley v. Gilbert, 149 Tex. 493, 497, 236 S.W.2d 121, 123 (1951). The necessary predicate to a presumption is a fact proved or known, and it was error for the court here to presume that the land on the Boyd farm was of a certain character in the absence of facts upon which to base the presumption. Inferences of fact cannot be drawn from uncertain premises. Bob’s Candy & Pecan Co. v. McConnell, 140 Tex. 331, 167 S.W.2d 511 (1943).

The presumption particularly urged by Mrs. Sheppard is that the presence of Duke on the highway established a rebut-table presumption of negligence against Beck and Boyd under Art. 6971a, Tex.Rev.Civ.Stat.Ann. (Supp.1978) [later quoted and legislative history reviewed]. They rely on the case of Adamcik v. Knight, 170 S.W.2d 521 (Tex.Civ.App.1943, no writ), which was followed with approval in Dorman v. Cook, 262 S.W.2d 744 (Tex.Civ.App.1953, writ dism’d).

The court in Adamcik recited that:

Adamcik sued Knight for damages to an automobile resulting from a collision between the automobile and a horse belonging to Knight allegedly roaming at large unattended, on a fenced designated state highway in violation of Art. 1370a, Vernon’s Ann.P.C., which provides: ‘Any person owning or having control of any horse . . . who permits the same to traverse or roam at large, unattended, on the right-of-way of any designated State Highway in this State where the same is enclosed by fences on both sides shall be guilty of a misdemeanor . . . .’

170 S.W.2d 521.

In holding that proof that Knight was the owner of the horse was sufficient to present a prima facie case of liability against him, the court cited a statement in 45 A.L.R. 505 at 507 (1926) that:

. ‘The weight of authority, however, seems to be that a statute or ordinance forbidding the allowing of domestic animals to run at large on the public ways is designed, inter alia, for the prevention of accidental injuries to persons using the highways for the purpose of travel; and where an accident occurs as the result of a violation of such a statute a presumption of negligence on the part of the owner of the animal arises, which is sufficient to carry the case to the jury.’ (Italics added).

170 S.W.2d at 522.

Apart from the question of whether a violation of the statute had actually been shown, the statutory basis for the ruling in Adamcik no longer obtains. The Legislature in 1959 amended the statute considered in Adamcik and for the first time defined the criminal offense in terms of “Any person . who knowingly permits such animal to traverse or roam at large, unattended” on a highway. Tex.Gen.Laws, ch. 374 § 1, at 835 (1959). The statute now appears in the civil statutes as Art. 6971a, and reads:

Art. 6971a. Animals running at large on State Highways; enforcement notwithstanding other laws
Section 1. Any person owning or having responsibility for the control of any horse, mule, donkey, cow, bull, steer, hog, sheep, or goat, who knowingly permits such animal to traverse or roam at large, unattended, only on the right-of-way of any U.S. Highway, or State Highway in this state but not including numbered farm-to-market roads, shall be guilty of a misdemeanor, and shall be fined in any sum not exceeding Two Hundred Dollars ($200.00). Each day that an animal is permitted to roam at large in violation hereof shall constitute a separate of-fence.

As shown by the recitation in the opinion quoted above, the 1935 statute before the court in Adamcik did not provide that to constitute an offense the owner or custodian must knowingly permit the animal to roam. See, Jackson v. Overby, 185 S.W.2d 765 (Tex.Civ.App.1945, no writ) where in considering Art. 1369 of the Penal Code with its requirement that the animal owner act willfully, and Art. 1370 of the Penal Code with its requirement that the animal owner act knowingly, the court wrote:

We understand that a necessary element of the offenses defined above is an intention to do the act complained of or such negligence as is tantamount to a wilful act. 39 Tex.Jur. 373. As said by Judge Williams in Texas & P. Ry. Co. v. Webb, 102 Tex. 210, 114 S.W. 1171, 1173:
‘While the stock law is intended to require owners to confine animals, the running at large of which is prohibited, and one who permits them to run at large violates the law, it is true, nevertheless, that such animals may often escape without fault on the part of their owners, when the latter will be guilty of no offense against the law.’

185 S.W.2d at 766-7. See also Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587 (1948), in which this Court considered a statute making it unlawful for any person knowingly to permit a motor vehicle under his control to be driven by any person not licensed to operate a motor vehicle. There we said:

The statute, as we construe it, prohibits the lending of an automobile only where the owner knows that the driver does not have a license. We do not think, therefore, that the mere proof, in the absence of actual knowledge, that the defendant’s agents in the exercise of reasonable care should have known that Dickson did not have a license would show a violation of the statute.

146 Tex. at 320-21, 206 S.W.2d at 590.

Accordingly, we hold that neither Beck’s ownership of Duke, nor Boyd’s ownership of the premises, create a rebuttable presumption under Art. 6971a that Duke’s presence on the highway was due to the negligence of either.

As to common law negligence, we hold that there was no more than a scintilla of evidence that either Beck or Boyd was negligent. As to Beck, we have heretofore noted the absence of any evidence establishing the topography of the Boyd pastures and whether or not the horses in the pastures could be seen from the barn. There was no evidence that any of the fences were down or gates open, or that Duke had ever gotten out of the pastures or that he had any propensity for doing so. There was no evidence of the nature, extent or duration of the ride taken by the friend whom Beck requested to chase Duke to the barn. Such being the state of the record, there were no facts or circumstances that can be said to have reasonably alerted Beck to the possibility that the horse had escaped the fences or gates, or that would show that Beck did not exercise due care. Indeed, it is clear from its opinion that the ruling of the Court of Civil Appeals that there was a fact issue with respect to the question of Beck’s negligence rested on the unsupported presumption heretofore discussed regarding the nature of the Boyd premises. The trial court therefore properly instructed a verdict in favor of Beck.

As noted in the forepart of this opinion, the Court of Civil Appeals affirmed the action of the trial court in instructing a verdict in favor of Boyd, the landowner. We agree. Mrs. Sheppard contends that because there was some testimony concerning prior escapes by horses, a fact issue as to Boyd’s negligent failure to keep a proper lookout over Duke, the fences and the gates was raised. The evidence relied upon by Mrs. Sheppard established only that at unspecified and infrequent times in the past, Boyd had found horses which had escaped their enclosures. There was no evidence of the cause of the past instances, or that there had been any of recent occurrence involving either Duke or any of the other horses that were stabled on the Boyd farm.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

      . Mrs. Sheppard states in her Application for Writ of Error:
      “Petitioners want to make it clear to this Court in this application, as they attempted to do in the Court of Civil Appeals, t' at they are ascerting [sic] and relying upon statutory violations of the stock law in addition to acts and omissions amounting to common law negligence. In this connection Petitioners do not hesitate to admit that the case was tried primarily upon the theory of statutory violations and they pray that this Court will give them a ruling concerning the applicability of the stock law to the facts of this case.”

      . See generally Annot. 59 A.L.R.2d 1328 (1958) (superseding Annot. 45 A.L.R. 505 (1926)) and Annot. 34 A.L.R.2d 1285 (1954).

      . The statute as it read at the time of Adamcik was originally enacted in 1935. Tex.Gen.Laws, ch. 186, § 1, at 467 (1935). The statute was initially codified as Art. 1370a of the Annotated Penal Code and remained as such after it was amended in 1959. When the Penal Code was recodified in 1974, the statute was transferred to the civil statutes as Art. 6971a. See, Tex. Gen.Laws, ch. 399 at 996e (1973). This statute was not the first stock law. The Legislature enacted the so-called “Local Option Hog Law” in 1897 and the “Local Option Horse Law” in 1907. A concise history of these Acts, together with an explanation for the difference in their titles, is contained in Neuvar v. State, 72 Tex.Crim. 410, 163 S.W. 58 (1914). These statutes were also originally codified in the Annotated Penal Code, as Articles 1369 and 1370, but were transferred to the civil statutes as Articles 6946a and 6946b when the penal code was recodified. Tex.Gen.Laws, ch. 399, at 996e (1973).
      Our review of the legislative history of the 1959 amendment establishes that the inclusion of the requirement of a knowing violation was deliberate. As originally introduced and passed in the Senate, the amendment did not include the word “knowingly.” See, Original Bill File, S.B. 387, 56th Legislature, Reg. Sess. (Legislative Reference Library). This requirement was added to the bill by amendment when it was passed by the House of Representatives. II Tex. House Jour., 56th Legislature (Reg. Sess.) 2769 (May 11, 1959). The Senate later concurred in the amendment without change. Tex. Senate Jour., 56th Legislature (Reg. Sess.) 1326 (May 12, 1959).


author: PER CURIAM.

text:
    AIRBORNE FREIGHT CORPORATION, Petitioner, v. CRB MARKETING, INC., Respondent.
    No. B-7426.
    Supreme Court of Texas.
    May 17, 1978.

      Don L. Baker, Austin, for petitioner.
    Donald R. Flournoy, Austin, for respondent.
   PER CURIAM.

This is a suit on a sworn account brought by Airborne Freight Corporation against CRB Marketing pursuant to Tex.R.Civ.P. 185. Attached to the plaintiff’s petition were copies of invoices for services rendered and an affidavit from plaintiff’s collection manager that the claim was just and true, that it was due, and that all just and lawful credits had been allowed. The defendant CRB answered only by an unsworn denial. At trial, Airborne Freight introduced evidence bearing only on the issue of reasonable attorney’s fees. After a nonjury hearing, the county court at law rendered judgment in favor of Airborne Freight for $1,063.12, representing the principal debt, attorney’s fees, and interest. Upon CRB’s appeal, the court of civil appeals reversed and rendered judgment that Airborne Freight take nothing. 561 S.W.2d 37. It held that no evidence supported the judgment because the sworn account was not formally offered in evidence. Airborne Freight now contends that the sworn account filed in accordance with Rule 185 is itself evidence to support the trial court’s judgment without the necessity of introducing it into evidence.

Rule 185 provides in part:

When any action or defense is founded upon an open account or other claim for goods, wares and merchandise, including any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true; . . . . When the opposite party fails to file such affidavit, he shall not be permitted to deny the claim, or any item therein, as the case may be. [Emphasis added].

It is settled that if the defendant fails to file a written denial under oath and in the form provided, he will not be permitted to dispute receipt of the items or services or the correctness of the stated charges. Wilson v. Browning Arms Co., 501 S.W.2d 705 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d). The defendant may, however, assert defenses in the nature of confession and avoidance without filing a sworn denial if they are properly pleaded. Jorrie Furniture Co. v. Rohm, 442 S.W.2d 476 (Tex.Civ.App.—San Antonio 1969, no writ). Of course, a sworn account is not prima facie evidence of the debt as against a stranger to the transaction. Hilton v. Musebeck Shoe Co., 505 S.W.2d 341 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.).

The answer filed by CRB did not plead any affirmative defenses or raise the issue that CRB was not a party to the transaction. It merely stated that CRB had no record of contracting for the services and demanded strict proof that it had authorized such services. The invoices attached to plaintiff’s sworn account affidavit named CRB as the party to be billed for the services. Under these circumstances, CRB’s unsworn denial did not place in issue any element of the plaintiff’s cause of action. The sworn account therefore constituted prima facie evidence of the debt, without the necessity of formally introducing the account into evidence. Since the defendant failed to file a sworn denial of the account, no further evidence was required. Tex.R.Civ.P. 185; Wilson v. Browning Arms Co., supra; O’Brien v. Cole, 532 S.W.2d 151, 152 (Tex.Civ.App.—Dallas 1976, no writ); Alton R. Fairchild Inc. v. M-P Cotton Felt Co., 403 S.W.2d 527 (Tex.Civ.App.—Fort Worth 1966, no writ); cf. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 78 (1958).

The court of civil appeals cited Hilton v. Musebeck Shoe Co., 505 S.W.2d 341 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.); Johnson v. Walker, 330 S.W.2d 508 (Tex.Civ.App.—San Antonio 1959, no writ); and Chisos Mining Co. v. Chicago Pneumatic Tool Co., 142 S.W.2d 549 (Tex.Civ.App.—El Paso 1940, writ dism’d judgmt cor.), in support of its holding that the sworn account must be offered in evidence even when no sworn denial has been filed. Hilton involved a stranger to the transaction, while Johnson was a case in which the plaintiff failed to properly plead a sworn account. Those cases are therefore inapposite. Chi-sos Mining states that the account must be offered in evidence in a case such as this, but that statement was unnecessary to the holding of the case, and such language is hereby expressly disapproved.

The holding of the court of civil appeals is in conflict with Rule 185. Accordingly, the application for writ of error is granted, and without hearing oral argument, the judgment of the court of civil appeals is reversed and that of the trial court affirmed. Tex.R.Civ.P. 483.