author: BROCK, Justice.

text:
    Adele FRAZIER, Appellant, v. NORMAK INTERNATIONAL and Chubb/Pacific Indemnity Group, Appellees.
    Supreme Court of Tennessee.
    Oct. 30, 1978.

      W. Conway Garlington, James W. Justice, Knoxville, for appellant.
    Jerry A. Farmer, Knoxville, for appellees.
   BROCK, Justice.

This is a workmen’s compensation case. The employee, Adele Frazier, appeals from a judgment rendered in favor of her employer, Normak International, and its insurer, Chubb/Pacific Indemnity Group. The trial court held that the injuries arose in the course of employment but did not arise out of the employment and that the employee was not subjected to any definite special hazard on the route to work. The questions to be answered on appeal are: (1) whether the injuries arose out of the employment and (2) whether Mrs. Frazier was subjected to any definite special hazard. We answer both in the affirmative.

Mrs. Frazier slipped and fell on a sheet of ice, striking her back and head, as she was going to work on January 26, 1977. The weather had been bad for several days; there was ice on the ground and it was snowing. Mrs. Frazier arrived at the Nor-mak plant at approximately 6:00 a. m. with her husband who was also employed by Normak. Mrs. Frazier’s shift actually began at 7:00 a. m. but her husband had to report at 6:00 a. m., so she went to work with him. Mrs. Frazier, with her supervisor’s permission, usually began work or cleaned her machine between 6:00-6:30 a. m.

The Normak plant, which is located in Knoxville, has four entrances, two on 17th Street and two on an alley which runs between the buildings in the warehouse complex. The alley is closed to the general public, but is used by three other companies for shipping and receiving. A gate which leads to the alley is locked nightly and reopened each morning for employees to enter. Mrs. Frazier had walked through the gate and was headed toward the building in which she worked when she fell. The gate was the only means of access to the building at the time Mrs. Frazier arrived.

The general rule is that injuries sustained en route to work are not compensa-ble because they do not arise out of and in the course of employment. Woods v. Warren, Tenn., 548 S.W.2d 651 (1977); Little v. Johnson City Foundry & Machine Co., 158 Tenn. 102, 11 S.W.2d 690 (1928). Mrs. Frazier was going to work at the time of her fall; therefore, in order to be eligible for compensation benefits she must come within one of the recognized “exceptions to the general rule.” We hold that she meets the criteria of the “required route, special hazard” exception. Travelers Indemnity Company v. Charvis, 221 Tenn. 593, 428 S.W.2d 797 (1968). In Woods v. Warren, supra, the Court stated:

“. . that in order to avoid the application of the general rule of nonliability for an injury sustained en route to or from work, the employee must show that:
“a. at the time of the injury he was using a route required or furnished by the employer; . . . , and such route was on the premises of the employer, . . . [citations omitted], and
“b. the use of the required route subjects the employee to a definite special hazard, [citations omitted], or
“c. that the risks of travel are directly incident to the employment itself. [Citations omitted.]” 548 S.W.2d at 655.

In Woods, supra, the appellant was employed as a maid in the apartment complex in which she lived. On the morning of her accident, it was snowing and the ground was icy. As she got out of her car to go to work, she slipped and fell on the parking lot, injuring her knee. The trial court denied recovery; this Court affirmed.

The facts of the case at bar are distinguishable from those of Woods. The employee in Woods was attempting to cross a parking lot which was open to and used by the general public. This Court has consistently upheld the denial of compensation when injuries are sustained on a public thoroughfare while traveling to or from work. Free v. Indemnity Insurance Co. of North America, 177 Tenn. 287, 145 S.W.2d 1026 (1941), an employee slipped and fell on a public sidewalk near the employer’s place of business as he was leaving; Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771 (1951), employee, going to work slipped and fell on icy public sidewalk at entrance to the employer’s business; Tri City Towel and Linen Service v. Cope, Tenn., 529 S.W.2d 51 (1975), employee fell in public alley outside employer’s place of business as she was returning from lunch. The rationale behind these decisions is that there is no hazard peculiar to the employment; thus, the injuries did not arise out of the employment.

Mrs. Frazier was on Normak’s premises when she fell, not on a public way. The premises of an employer “. . under our compensation statute means that part of the property where the employee is to do his work, including that part which he is required to use for ingress and egress.” Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386, 388 (1955).

Normak argues that the premises are leased from H. D. Wynn and that the alley is also used by three other companies. It is not important to this claim for compensation that the premises were leased. In Mallette v. Mercury Outboard and Supply Co., 204 Tenn. 438, 321 S.W.2d 816 (1959), Mercury Outboard leased space from the Memphis Park Commission. An employee fell on steps constructed by the Park Commission for Mercury’s use. This Court allowed compensation and quoted with approval the following excerpt from 99 C.J.S. Workmen’s Compensation § 231 (1958):

“. . . where employee must traverse property of employer or of employer’s landlord to reach or leave work, such extrance [sic] or exit, whether or not located on property under control of employer, is part of employer’s premises for compensation purposes.” 321 S.W.2d at 819.

Normak had not expressly advised its employees to use a specific route or entrance to reach the plant, but its normal practice was to open only the gate leading to the alley for employees reporting at 6:00 a. m. and those authorized to begin work early for the 7:00 a. m. shift. The entrances on 17th Street were not open to employees arriving early. Even though the alley was used by the other three companies, the president of Normak was not sure that their employees used entrances off the alley. Employees such as Mrs. Frazier were required to use the entrances off the alley. Under the facts, the alley was a required route for compensation purposes. See Aluminum Co. of America v. Baker, Tenn., 542 S.W.2d 819 (1976).

We must now address the question whether Mrs. Frazier was exposed to a definite special hazard. As is noted above, the hazard must be one to which the general public is not exposed. Normak urges us to follow the conclusion reached in Woods v. Warren, supra, that general snowy and icy conditions are not definite special hazards of employment. Woods is not controlling here, the icy condition was not a general one, the hazard created by the ice on the alley was peculiar to the personnel of Nor-mak and the companies which used the alley. The general public is not allowed to enter the alley and even though three other companies used the alley, it is a part of Normak’s premises for compensation purposes. Mallette, supra.

Normak was aware of the icy condition and its president knew that other employees had fallen. It had even salted the alley on prior occasions due to the hazardous conditions created by the weather.

In Potts v. Heil-Quaker Corp., Tenn., 482 S.W.2d 135 (1972), an employee slipped and fell on a film of oil which had accumulated on his employer’s premises. The oil was held to be a definite special hazard within the meaning of our case law. Similarly here the ice on the alley was a definite special hazard known to Normak. Access to the alley was restricted and employees arriving early were required to use entrances off the alley. Mrs. Frazier usually arrived early and began work with company approval.

The judgment of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

HENRY, C. J., and FONES, COOPER and HARBISON, JJ., concur.


source: Caselaw Access Project

author: HARBISON, Justice.

license: Public Domain

text:
    Nancy I. SAUNDERS, Petitioner-Defendant, v. Margaret McKENZIE, mother and next friend of Giselle McKenzie, Deceased, Respondent-Plaintiff.
    Supreme Court of Tennessee.
    Oct. 30, 1978.
    Wm. P. Biddle, III, Higgins & Biddle, Athens, for petitioner-defendant.

      Allen H. Carter, Carter & Reid, Athens, for respondent-plaintiff.
   HARBISON, Justice.

This case involves the question of whether a post-judgment motion to dismiss an appeal, filed in the trial court, suspends the time during which an appealing party is permitted to file his bill of exceptions, or transcript of evidence. The question turns upon an interpretation of a portion of T.C.A. § 27-111:

“The period of pendency of any motion or other matter, having the effect of suspending such final judgment or action, shall be excluded in the computation of the period.”

The sequence of events as reflected in the technical record is of some importance.

Judgment was entered on a jury verdict in favor of the plaintiff, respondent here, on March 15, 1977, in the Circuit Court of McMinn County. The jury award was $75,-000 in compensatory damages and $250,000 as punitive damages in an action for wrongful death of plaintiff’s decedent.

The defendant in the action, petitioner here, was covered by two policies of liability insurance. Basic coverage, with limits of $100,000, was provided by Hanover Insurance Company; excess coverage up to $1,000,000 was provided by Aetna Casualty and Surety Company. Counsel for each of these companies appeared for the defendant in the trial court.

On April 11, 1977, a motion for new trial was timely filed on behalf of the defendant, seeking relief from the award of punitive damages on various grounds, some involving questions of evidence. Argument was heard on that motion on May 6, 1977, and the motion was orally overruled. A written order reciting the above and reflecting the action taken, however, was not signed and entered by the trial judge until June 2, 1977.

In the interim, on May 10, 1977, counsel for Hanover Insurance Company wrote to the Circuit Court Clerk, with copies to all other counsel, sending a draft in the amount of $104,558.72. This represented payment of the company’s policy limits toward the judgment, together with interest accrued to that date, and court costs. This letter was received by the Circuit Court Clerk on May 12, 1977. On the following day, May 13, the trial judge entered an order directing the Clerk to deposit the funds at interest, pending further orders.

As previously stated, an order of the court overruling the motion for a new trial was not entered until June 2, 1977 — nearly three weeks after the Hanover Insurance Company funds had been received and deposited by the Clerk. The June 2 order formally overruled the motion for a new trial. It reflects that the defendant excepted, prayed and was granted an “appeal” to the Court of Appeals, conditioned upon her filing a proper appeal bond and otherwise perfecting her appeal within thirty days from the entry of the order. On the same day a proper appeal bond, in the amount of $26,000, was filed with the Clerk. No exceptions were taken as to the sufficiency of that bond.

Eleven days after the entry of the order granting appellate review and after the filing of the appeal bond, counsel for the plaintiff, on June 13, 1977, filed in the Circuit Court a document captioned simply as a “Motion”. This motion recites voluntary payment of $104,558.72 on behalf of the appealing defendant, and avers that such payment “terminates her right of appeal.” Accordingly counsel for the plaintiff moved the court “to dismiss the appeal of the defendant” or, in the alternative, if the court should determine that such motion in the trial court “is not well taken,” counsel for plaintiff sought leave to file said motion in the Court of Appeals. Counsel also requested that an affidavit of the Circuit Court Clerk, reciting the foregoing chain of events, be included in the record on appeal in the event the motion to dismiss were not sustained in the trial court. On that same date an order was entered permitting the Clerk to disburse the funds on deposit.

As stated, this motion was filed eleven days after entry of the order overruling the motion for a new trial. That order, of course, under existing Tennessee practice, was the order which “occasioned the filing” of a bill of exceptions, or transcript of evidence, under T.C.A. § 27-111. Ordinarily, therefore, the appealing defendant would have had thirty days, or until July 2, 1977, within which to prepare and file such transcript. The appellant could, of course, have sought and obtained an extension of up to an additional sixty days, or until August 31, 1977, had timely application been made. T.C.A. § 27-111.

Apparently uncertain of the effect of respondent’s motion to dismiss the appeal, counsel for each of the two insurance companies filed separate written responses thereto, without, however, obtaining an extension of time for filing their bill of exceptions.

On June 20, 1977, counsel for Hanover Insurance Company filed a response, admitting partial payment of the judgment, but denying that such payment had the effect of terminating the right of appellate review. This response prayed for dismissal of the motion filed by the plaintiff, but consented to the inclusion of that motion and any supporting affidavits in the appellate record. Counsel for Hanover attached an affidavit to this response, asserting that his company did not desire to seek appellate review and had made payment to avoid liability for accruing interest on the entire judgment for which it might otherwise have been obligated under the terms of its policy.

On July 1,1977, there was filed on behalf of the appealing defendant, through counsel for Aetna, a similar response to the plaintiff’s motion to dismiss. This response also admitted the partial payment of judgment, but asserted that the same did not terminate defendant’s right to appeal. It further alleged that the motion to dismiss was premature and could only be raised in the appellate courts. Counsel for Aetna attached his affidavit to this response, asserting that his insurance carrier did desire to pursue the appeal. He stated that neither he nor the insurance carrier which he represented had been contacted in regard to the propriety of the partial payment of judgment or its potential effect, but asserted the belief of counsel that the partial payment of judgment did not preclude appellate review.

Again, according to the technical record, oral argument was heard on the motion to dismiss the appeal long before entry of any written order reflecting the action of the court. The order ultimately entered recites that oral argument was heard on July 8, 1977. It states that the motion to dismiss the appeal was overruled, with leave granted to the parties to include in the record on appeal the various motions, responses and affidavits above referred to. This written order was not signed or entered until August 30, 1977. It is not possible to tell whether the Judge took the motion under advisement on July 8 or whether at that time he ruled orally and the written order merely reflected his oral rulings as had been done in connection with the motion for new trial.

The latter seems the more probable sequence, because counsel for the appealing defendant obtained the signature of the trial judge on the transcript of evidence on July 27, 1977, and filed the same, in the office of the Circuit Court Clerk on the following day, July 28. This bill of exceptions was approved by counsel for all parties. It was obviously filed more than thirty days from the date of the order which originally occasioned its filing, that of June 2, 1977, overruling the motion for a new trial. It was filed about three weeks after the trial judge had orally heard the motion to dismiss the appeal.

The Court of Appeals was of the opinion that the motion to dismiss the appeal filed on behalf of the plaintiff was ineffectual, and that it did not suspend the time for filing the bill of exceptions.

Apparently counsel for plaintiff, in filing that motion, relied upon the rule laid down in Metropolitan Development & Housing Agency v. Hill, 518 S.W.2d 754 (Tenn.App.1974), to the effect that voluntary payment of a judgment by a defendant constitutes a waiver of that party’s right to appellate review.

That case, however, involved full satisfaction of the judgment, not merely a partial payment such as that involved here. We are in agreement with the holding of the trial court and the implicit holding of the Court of Appeals that a partial payment, under the circumstances shown in this case, does not constitute such a waiver.

We are further in agreement that a motion such as that filed by the plaintiff is not authorized by existing trial practice in this state. The motion, if proper at all, should have been filed in the appellate court, not the trial court. The only procedural statute presently permitting the trial court to dismiss an appeal is T.C.A. § 27-318, which provides that upon failure of the appealing party to file a proper appeal bond or, in certain instances, to file a timely bill of exceptions, dismissal may be ordered at the trial level.

Counsel for the plaintiff, respondent here, almost conceded on the face of their motion to dismiss the appeal that they had doubts as to its efficacy, because they included an alternative prayer that the motion be permitted to be filed in the appellate court if it was not “well taken” in the trial court.

Nevertheless, the motion was filed, apparently was entertained by the trial judge, and was ultimately overruled. Its filing, to say the least, was sufficient to cast doubt upon the course of action which should appropriately be followed by counsel for the appealing party. If the motion were sustained, and the appeal dismissed, there would be doubt as to whether the bill of exceptions could or should be filed. Counsel usually cannot ignore pending motions in the trial court, even if they consider them to be ill-founded or improper. Accordingly both counsel for the defendant responded to the motion, sought its overruling, and denied its efficacy.

We are of the opinion that while this motion was pending, and until it was overruled by written order duly entered by the trial judge pursuant to the provisions of Rule 58, Tennessee Rules of Civil Procedure, counsel for the appealing party should not be charged with the lapse of time, nor should that period be included in the computation of the period allowed for the filing of the bill of exceptions.

It is true, as observed by the Court of Appeals, that the motion to dismiss the appeal did not, as such, seek to suspend the final judgment itself. In effect, however, it did seek to strike from the order which would occasion the filing of a bill of exceptions—the order overruling the motion for a new trial—that portion in which the appealing party had “prayed” and had been “granted” an “appeal”—the latter term, as used here, of course, referring to Tennessee’s statutory “appeal in the nature of a writ of error” provided for the review of jury verdicts. T.C.A. § 27-308. Present practice requires both the “prayer” and the “grant” of this statutory appeal in the nature of a writ of error; otherwise the appealing party must seek review by the ancient “writ of error”, T.C.A. § 27-601 et seq. See T.C.A. § 27-310. Russell v. Willis, 222 Tenn. 491, 437 S.W.2d 529 (1969); Gray v. State, 207 Tenn. 39, 336 S.W.2d 22 (1960).

The improperly filed motion probably did not have the effect of suspending the final judgment. The object of the motion, however, clearly was to suspend and terminate the “action,” in the sense of terminating all proceedings leading to appellate review of that judgment. We think it understandable that counsel for the defendant were not certain of what procedure to follow in the face of that motion, and it seems to us that the plaintiff is hard pressed to insist that the time for filing the bill of exceptions continued to run while her motion to dismiss the appeal was pending and was being considered in the trial court.

There are a number of rather technical steps or procedures to be followed in removing a case from a trial court to the proper appellate court. These are governed by procedural statutes. Nevertheless, running through the case law of this state is a strong theme that any doubt as to the proper construction of statutes regulating appeal should be resolved in favor of the right of appeal. See Lindsey v. Fowler, 516 S.W.2d 88, 89 (Tenn.1974); Bozeman v. Naff, 155 Tenn. 121, 290 S.W. 981 (1927).

The result reached by the Court of Appeals, in striking the bill of exceptions in this case and thereby precluding any effective appellate review, might be sustained by a close and very literal interpretation of the provisions of T.C.A. § 27-111:

“The period of pendency of any motion or other matter, having the effect of suspending such final judgment or action, shall be excluded in the computation of the period.”

On the other hand, this is a savings statute and, in our opinion, should be given a liberal interpretation. In light of the perplexing and unusual procedural situation which evolved in the present case, we conclude that the motion to dismiss filed by respondent was intended to, and did, have the effect of suspending any further steps by petitioner to obtain appellate review until that motion was disposed of. We are persuaded that this is both the proper and just application of the statute.

Accordingly the judgment of the Court of Appeals is reversed and the cause is remanded to that court for consideration of the assignments of error predicated upon the bill of exceptions, which we hold to have been timely filed. Costs in this Court are adjudged against respondent. All other costs will abide the judgment of the Court of Appeals.

HENRY, C. J., and COOPER, FONES and BROCK, JJ., concur.

      . That judgment was already “suspended” by the filing of the appeal bond. This, technically, “perfected” the appeal in the nature of a writ of error. Such an appeal, however, merely suspends, but does not “abrogate” the final judgment as does a “simple appeal” in equity cases. See Shepard v. Lanier, 192 Tenn. 608, 241 S.W.2d 587 (1951); Caruthers, History of a Lawsuit, §§ 434, et seq., 445 (8th ed., Gilreath, 1963).


author: NEARN, Judge.

text:
    Robert C. WALTERS, Jr., a minor, by his natural parent and next friend, Robert C. Walters, and Robert C. Walters, Individually, Appellants, v. Mike GLIDWELL and Gail L. Glidwell, Appellees.
    Court of Appeals of Tennessee, Western Section.
    May 24, 1978.
    Certiorari Denied by Supreme Court Sept. 19, 1978.

      T. Robert Hill, Larry C. Sanders, Jackson, for appellants.
    James D. Todd, Jackson, for appellees.
   NEARN, Judge.

Robert C. Walters, Jr., a seven year old minor, was struck by an automobile being driven by Gail L. Glidwell and owned by her husband, Mike Glidwell. The minor was attempting to cross “Old Humboldt Road” in Madison County when the injuries were sustained. Suit was filed on behalf of the minor by his father as next friend and individually, seeking damages from the Glidwells. The matter was tried to a jury which body returned a defendants’ verdict. Plaintiffs appeal and charge the Trial Court with error in the admission of evidence and in the charge to the jury.

The first Assignment complains of the admission of alleged “expert” testimony. We believe the complaint has merit.

While the Trial Judge has broad powers of discretion in determining the qualifications of expert witnesses, those powers are not absolute. In this case, a State Trooper testified that he had been such for five years. Further, that in addition to his initial two months training, he received a week of schooling each year in in-service training. Part of that one week annual training consisted of the measurement of skidmarks and the interpretation of speed from them. An hour or a couple of hours each year were devoted to calculating speed from skidmarks.

The trooper then testified that he arrived on the scene a few minutes after this accident. He then drove his patrol car at a given speed on the asphalt and applied his brakes. Knowing his speed and the length of skidmarks he laid down at that speed, he then correlated that information with the actual length of skidmarks laid down by the defendant to a “template” supplied by the state and arrived at a speed for the defendant’s vehicle. He placed defendant’s maximum speed about 10 m.p.h. under that testified to by defendant.

On cross-examination by plaintiff’s counsel the trooper testified that he did not know the weight of his vehicle or that of the defendant’s; also, that he did not know the tire type or air pressure in either his or the defendant’s tires. Likewise, he did not know the effect on his “template” of the fact that part of the defendant’s skid was on gravel, while all of his was on asphalt. The trooper testified that he knew nothing of either the mathematical formulae or theory used in the “template” process or the mathematical formulae used to compute vehicular speed from skidmarks. In all honesty, the trooper could testify that the only thing he knew about the correlation of skid-marks to speed was how to read the “template” and knew nothing else of the process. In fairness to the trooper we must point out that when offered as a witness by the plaintiff, he was never offered in the capacity of an expert witness but was only offered as an investigating officer. It was on cross-examination by defendants’ counsel that the metamorphosis in the trooper from plain witness to “expert” witness took place. The Court declared the trooper to be an expert skidmark witness and required that he be considered as a defense “expert” witness and permitted cross examination by plaintiffs counsel. We hold this to be error. The trooper had no expert opinion. He only proffered the opinion of the “template” as the expert. We further hold that such error was harmful and reversible. We quote from defense counsel’s view of its importance when attempting to persuade the Court to declare the trooper to be an expert:

“MR. TODD: Your Honor, at this time we tender Trooper Gilbert not only as an expert but as the best expert in this lawsuit, and the law in Tennessee is clear that a Tennessee highway patrolman is qualified to testify. As a matter of fact, the law is that even if he saw her skid-marks, he could have measured them and testified from them. But he went even one step further and did a test in his own automobile. And we submit that makes him the best expert of all, and it’s purely within Your Honor’s discretion. Whatever Your Honor rules, we’re all going to be bound by it because the Court of Appeals is not going to reverse Your Honor. And this is so critical to the defense. It’s a fact that the jury needs to know; the speed of the automobile. And he’s the only one who knows. And we think that to deny this from the jury would not be giving them the facts that they need to determine this lawsuit.”

We fear.counsel not only misinterpreted the qualifications of the trooper, but also prejudged, or misjudged, the actions of this Court.

The first Assignment of Error is sustained.

We believe the cases of Fortune v. State (1955) 197 Tenn. 691, 277 S.W.2d 381 and McElroy v. State (1921) 146 Tenn. 442, 242 S.W. 883, support our treatment of the first Assignment of Error.

We deem it unnecessary to consider the Assignment of Error which faults the Trial Judge for not granting a new trial based on newly discovered evidence consisting of the “expert” trooper’s affidavit to the effect that he had misread the “template” and erred in his testimony before the jury.

The remaining Assignments of Error deal with the Court’s charge to the jury. Generally speaking, the correctness of a Court’s charge to a large extent depends upon the proof adduced before the jury. This case must be retried and just what proof will be produced at that trial is a matter of some speculation. For us to rule on the alleged errors in this charge based on the proof now before us would be both futile and advisory. Therefore, we preter-mit ruling upon the remaining Assignments of Error.

However, we are constrained to comment upon one of them. Counsel for appellant faults the Trial Judge for not charging the jury the doctrine of comparative negligence, that is, the principle that damages are to be assessed and offset upon a scale of degrees of negligence of the plaintiff and the defendant. Such is not the Tennessee rule for the assessment of damages and we cannot help but wonder how a minor, as in this case, is better off under some sort of “comparative negligence” law rather than Tennessee law which presumptively places this minor plaintiff’s capabilities for negligence at “0”.

For the reasons given, the judgment below is reversed and the case remanded for a new trial with costs there to await the outcome of the new trial.

Costs of appeal are adjudged against ap-pellee.

Honorable Lloyd Tatum, by designation of the Supreme Court of Tennessee, took part in the hearing of this appeal in the absence of Judge Kirby Matherne.

Done at Jackson in the two hundred and second year of our Independence and in the one hundred and eighty-third year of our Statehood.

SUMMERS, J., and TATUM, Special Judge, concur.


author: CHADICK, Justice.

text:
    R. O. DAVIS, Petitioner, v. Norman N. CAMPBELL, Respondent.
    No. B-7560.
    Supreme Court of Texas.
    Oct. 4, 1978.
    Rehearing Denied Nov. 1, 1978.
    James P. Finstrom, Dallas, for petitioner.
    Gordon Shanklin, William F. Billings, Dallas, for respondent.
   CHADICK, Justice.

This suit was instituted in the trial court by Roland O. Davis, plaintiff, against Norman N. Campbell and Harold Collum, defendants, as a breach of contract action. Summary judgment for the defendants was granted, but on appeal the judgment was reversed and the case remanded for trial on the merits. Tex.Civ.App., 524 S.W.2d 790. At trial on the merits, Davis was awarded a $20,624.38 judgment against Campbell on a jury verdict. The action against Collum was withdrawn from the jury and a take-nothing judgment rendered. Campbell appealed and the Court of Civil Appeals reformed the trial court judgment by allowing Campbell a setoff of $13,500.00 against the trial court award and affirmed the trial court judgment as reformed. Tex.Civ.App., 563 S.W.2d 675. We reverse the reformation ordered by the Court of Civil Appeals and affirm the trial court judgment.

In 1953 Davis acquired a motel located on 1.46 acres of land in the City of Dallas. In 1969 he defaulted payment of indebtedness secured by first and second liens on the property. The first lien was foreclosed in April, 1969. C. D. Wyche financed Davis’ reacquisition of the property and took a second lien as security. The Wyche second lien was foreclosed in 1970, and the Wyche Estate bought the property. The Trustee for the Wyche Estate gave Davis an oral option to repurchase the property on or before September 1, 1971 for $55,000.00. The Wyche Estate was engaged in liquidating its assets and had no interest in the property’s speculative possibilities. Davis negotiated a contract with a group of doctors that granted them an option to purchase the property for $242,000.00. The option contract was dropped when the doctors learned that Davis did not have actual title to the property.

Davis immediately set about to borrow money to purchase the property from the Wyche Estate, planning to obtain title by exercise of the Wyche option and then sell to the doctor group. He approached Campbell, told him of the option and asked for a loan of $55,000.00. Davis proposed that he would take title in his own name and would repay the loan when the property was sold, together with ten percent interest and a bonus of $5,000.00 to Campbell. Campbell had the property appraised by Collum, a real estate broker, who found it to have sufficient value to be of speculative interest to Campbell. To stimulate Campbell’s interest in the deal Davis proposed to increase the bonus to $6,500.00. Davis testified Campbell accepted the loan proposal. Campbell denied an agreement was reached.

According to Davis, on August 28, 1971 Campbell advised him title to the property would have to be taken in Collum’s name and that Collum would be paid a $2,000.00 fee for his services out of the proceeds of the subsequent sale. Davis testified that he was not agreeable, but reluctantly went along with Campbell’s requirement that title be taken in Collum’s name because his option would expire within a few days. At this time Davis also agreed to pay all expense of the transfer of title from the Wyche Estate to Collum. At the date the purchase from the Wyche Estate was closed, Davis and his wife delivered their quitclaim deed to the property to Collum, and Davis paid closing expenses totaling $643.60.

Immediately following the purchase of the property from the Wyche Estate, Campbell and Collum leased it to Davis at $1,600.00 per month, and Davis continued with operation of the motel but fell $13,-500.00 behind in payment of monthly rent. On July 20, 1972 Campbell and Collum sold the property for $210,000.00 to the same group of doctors with whom Davis negotiated in May of 1971. In order to make the transfer Campbell cleared title to the property by paying all indebtedness thereon secured by existing liens, including two judgments against Davis, taxes, both current and delinquent, and closing costs. Davis did not participate in this sale of the property and received no part of its proceeds, but he was notified that his lease was terminated because of the sale.

THE DAVIS APPLICATION

Campbell’s brief in the Court of Civil Appeals contained a point of error that the trial court judgment awarding Davis a $20,-624.38 recovery was excessive and should be corrected by remittitur. The court treated the point as complaint that the trial court failed to offset against the judgment $13,-500.00 in motel rent arrearage which Davis acknowledged owing Campbell. The court concluded that Davis’ liability to Campbell for the arrearage was proven as a matter of law and reformed and reduced the judgment by offsetting the amount thereof. Whether the offset was allowable under the record is the question raised by the Davis application. We hold the offset improper.

In the trial court Davis pleaded a conventional breach of contract action. Campbell answered by general denial and in the alternative pleaded and prayed that certain alleged indebtedness Davis owed him be offset against any recovery Davis might be awarded. One of the items of indebtedness alleged was the $13,500.00 rent arrearage that accrued under the motel lease. In the trial court Davis presented his action on the theory that the measure of damages was the net profit that he would have made under the consummated sale of the property had Campbell performed the alleged contract. All evidence produced was in harmony with this theory. The $13,500.00 rent arrearage was treated by the parties as indebtedness that Davis was obligated to pay and as an expense that Campbell was entitled to recoup before a balance was struck that would show Davis’ profit on the transaction. Two special issues presenting the Davis theory were submitted to the jury. No objection to the issues or request for additional issues or instructions challenged the theory.

Nothing in the record suggests that the jury in answering the special issues submitted did not credit the rent arrearage to Campbell and consider it as a charge against Davis’ probable profit had the alleged contract been performed. Campbell’s motion for new trial contained an assignment of error that the trial court failed to award him judgment on his cross-action for the rent arrearage but the assignment was abandoned and not brought forward or briefed as a point of error in the Court of Civil Appeals. Also, consistent with Davis’ theory of the measure of damages, the jury had before it, without objection, a blackboard chart which summarized the testimony tending to prove Davis’ probable profit, as follows:

The closeness of the balance shown on the chart, $24,766.05, to the sum found by the jury as damages to Davis, $20,624.38, suggests that the jury considered the rental offset in its damages award.

Although the mental processes of the jury are unknown, the constraints of the theory upon which the case was tried by the parties required the jury to offset the rent arrearage in favor of Campbell in determining Davis’ profit. Parties are restricted on appeal to the theory on which the case was tried. State v. J. M. Huber Corporation, 145 Tex. 517, 199 S.W.2d 501 (1947); Sorrells v. Coffield, 144 Tex. 31, 187 S.W.2d 980 (1945); Safety Casualty Company v. Wright, 138 Tex. 492, 160 S.W.2d 238 (1942); Kousal v. Texas Power & Light Company, 142 Tex. 451, 179 S.W.2d 283 (1944). The Court of Civil Appeals apparently overlooked the parties’ trial theory and the jury’s offset of the rent arrearage in reaching its verdict and granted Campbell a second setoff of the amount thereof. Such action was erroneous and harmful to Davis. Accordingly, the judgment of the Court of Civil Appeals awarding Campbell a recovery on the arrearage cross-claim and reforming the trial court judgment is reversed.

THE CAMPBELL APPLICATION

Campbell attacks the trial court’s submission of the contract issue to the jury. The only special issues submitted to the jury were as follows:

ISSUE NO. 1
Do you find from a preponderance of the evidence that Norman N. Campbell orally agreed to loan R. 0. Davis $55,000.00 to purchase the property in question from the Wyche Estate on the terms of ten percent interest and payments of fees of $6,500.00 and $2,000.00?
Answer “We do” or “We do not.”
ANSWER We do.
If you have answered the last preceding issue “We do”, then answer the next following issue; otherwise, do not answer the next following issue.
ISSUE NO. 2
Find from a preponderance of the evidence the amount of money, if any, R. 0. Davis would have received from the proceeds of the sale of the property in question on July 20, 1972, if Norman N. Campbell had performed such agreement. Answer in dollars and cents, if any.
ANSWER $20.624.38.

Campbell argues that the submission inquired only into a preliminary agreement and wholly failed to inquire of the final agreement which was effective between the parties at the time the transaction was closed.

Campbell argues that Special Issue No. 1 submitted by the trial court is immaterial, as it did not require the jury to determine an ultimate or controlling issue in the case. He concedes that no objection was directed to the special issue on that ground in the trial court, but insists that his objection to the issue on the ground that it was not raised by the evidence served the same purpose. Clearly, a “no evidence” objection is not a complaint that the special issue was immaterial. Campbell also objected in the trial court to Special Issue No. 1 on the grounds that it was multifarious in that it asked the jury to determine two issues: (1) the existence of an agreement and (2) the terms of the agreement. Again, the objection that the issue is multifarious clearly is not a complaint that the issue submitted was not the controlling issue.

To preserve error Campbell was required to point out distinctly the matter to which he objected and the ground of his objection. Tex.R.Civ.P. 274. Where a litigant fails to distinctly object upon a certain ground, complaint on that ground is waived on appeal. Wilson v. King, 311 S.W.2d 957 (Tex.Civ.App.—Austin 1958, writ ref’d n.r. e.), Tex.R.Civ.P. 272. Here Campbell wholly failed to object to the submission on the grounds that it failed to submit the controlling issue. Campbell’s objections give no indication to the trial court of his complaint that the submission concerned the wrong agreement. Therefore, Campbell waived any error on that ground.

DISPOSITION

For the reasons discussed that part of the judgment of the Court of Civil Appeals which reforms the trial court judgment is reversed and set aside, and the judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    CORPUS CHRISTI AMERICAN FEDERATION OF TEACHERS et al., Petitioners, v. CORPUS CHRISTI INDEPENDENT SCHOOL DISTRICT et al., Respondents.
    No. B-7646.
    Supreme Court of Texas.
    Oct. 4, 1978.
    Rehearing Denied Nov. 15, 1978.

      Westergren & Westergren, Sam A. West-ergren, Jr., Corpus Christi, for petitioners.
    Gary, Thomasson, Hall & Marks, Richard A. Hall and J. W. Gary, Corpus Christi, for respondents.
   PER CURIAM.

This is an action to declare the rights of public employees to present grievances concerning “conditions of work” through representatives who do not claim the right to strike pursuant to Article 5154c, Section 6, Texas Revised Civil Statutes Annotated. A complete recitation of the facts is found in the opinion of the court of civil appeals at 564 S.W.2d 477.

We agree with the court of civil appeals that the “issue to be resolved is whether the ‘grievance’ involves a ‘condition of work’ ” under the statute. We are, however, of the opinion that the result reached by the court of civil appeals is contrary to the statute and, pursuant to Rule 483, Texas Rules of Civil Procedure, we grant the application of the Corpus Christi American Federation of Teachers; and, without hearing argument in the case, reverse the judgment of the court of civil appeals and affirm that of the trial court.

It is sufficient to note that the “grievance” in this case was directed toward the superintendent of the district who is vested with broad supervisory powers over all school employees and makes policy recommendations to the Board of Trustees concerning all phases of operation. The “grievance” concerned membership on an advisory committee to the superintendent to be composed of teachers in the district. The committee is designed to promote communication between school teachers and the superintendent. Although discussion of salaries and fringe benefits is excluded, there is no reason to believe that many topics directly related to “conditions of work” will not be discussed. In fact, the purpose of the committee is to provide a direct line of communication to the management.

The merits of the “grievance” are not at issue in this appeal. The only question is whether the aggrieved party had the absolute right under the statute to be represented by the president of the local union, which admittedly does not claim the right to strike. We hold that she did. Dallas Ind. Sch. Dist. v. American Fed. of State, Etc., U., 330 S.W.2d 702 (Tex.Civ.App.—Dallas 1959, writ ref’d n.r.e.); Beverly v. City of Dallas, 292 S.W.2d 172 (Tex.Civ.App.—El Paso 1956, writ ref’d n.r.e.).

A motion to dismiss the cause as moot has been filed on behalf of the school district. Such motion is overruled.

The judgment of the court of civil appeals is reversed, the judgment of the trial court is affirmed, and the injunction is reinstated.

      . Article 5154c, Section 6, Texas Revised Civil Statutes Annotated, provides:
      “The provisions of this Act shall not impair the existing right of public employees to present grievances concerning their wages, hours of work, or conditions of work individually or through a representative that does not claim the right to strike.”


author: McGEE, Justice.

text:
    David Andrew WHITTLESEY, Petitioner, v. Ann P. MILLER, Respondent.
    No. B-7551.
    Supreme Court of Texas.
    Oct. 11, 1978.
    Rehearing Denied Nov. 22, 1978.
    Lancaster Smith and Harvey L. Davis, Dallas, for petitioner.
    Johannes, Robertson & Wilkinson, Ronald L. Wilkinson, Dallas, for respondent.
   McGEE, Justice.

The question presented by this appeal is whether one spouse has an independent action for loss of consortium as a result of physical injuries caused to the other spouse by the negligence of a third party. The vehicle Stewart Miller was driving was involved in a collision with a vehicle driven by David Whittlesey in June 1974. In March 1976, Miller and Whittlesey entered into a settlement agreement whereby Miller released Whittlesey from liability in connection with the accident for consideration of $9,650. In June 1976, Ann Miller, Stewart’s wife, sued Whittlesey for damages, alleging that Whittlesey’s negligence had caused personal injury to her husband, thereby depriving her of her husband’s consortium. Whittlesey was granted a summary judgment on the basis that a Texas wife could not recover for loss of consortium for the alleged negligent injury to her husband. The court of civil appeals reversed and remanded. 562 S.W.2d 904. We affirm the judgment of the court of civil appeals.

The marital relationship is the primary familial interest recognized by the courts. The remedy for the negligent or intentional impairment of this relationship is a tort action for loss of consortium. J. Stein, Damages and Recovery, Personal Injury and Death Actions § 203, at 418 (1972). Consortium has been the subject of many different definitions by the courts, but it can generally be defined to include the mutual right of the husband and wife to that affection, solace, comfort, companionship, society, assistance, and sexual relations necessary to a successful marriage. See, e. g., Schreiner v. Fruit, 519 P.2d 462 (Alaska 1974); Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669 (1974); Gates v. Foley, 247 So.2d 40 (Fla.1971); Whitley v. Whitley, 436 S.W.2d 607 (Tex.Civ.App.—Houston [14th Dist.] 1968, no writ); Diaz v. Eli Lilly & Co., 364 Mass. 153, 302 N.E.2d 555 (1973). This definition primarily consists of the emotional or intangible elements of the marital relationship. In Texas, it does not include the “services” rendered by a spouse to the marriage. These elements have been referred to as a conceptualistic unity, and the action accrues upon the substantial impairment of them. See Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 60, 183 F.2d 811, 814 cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950); Whitley v. Whitley, supra.

The loss of consortium can arise from either the intentional or negligent conduct of a third party toward the marital relationship. The intentional impairment of consortium can result in actions for either alienation of affections or criminal conversation. Both actions have been recognized by prior Texas decisions. Felsenthal v. McMillan, 493 S.W.2d 729 (Tex.1973) (criminal conversation); Kelsey-Seybold Clinic v. Maclay, 466 S.W.2d 716 (Tex.1971) (alienation of affections); Whitley v. Whitley, 436 S.W.2d 607 (Tex.Civ.App.—Houston [14th Dist.] 1968, no writ) (alienation of affections).

The husband’s right to recover for the negligent impairment of consortium has existed at common law, although there are no decisions by this court expressly holding this. It has only been within the past 25 years, however, that the wife’s cause of action in the United States has been recognized. The general acceptance of this action is reflected in the Restatement (Second) of Torts § 693 (1977), which now states:

“(1) One who by reason of his tortious conduct is liable to one spouse for illness or other bodily harm is subject to liability to the other spouse for the resulting loss of the society and services of the first spouse, including impairment of capacity for sexual intercourse. . . ”

Comment a to the above characterizes the spouse who suffered the bodily harm as a result of the tortious conduct as the “impaired spouse”; the spouse who brings the independent consortium action is characterized as the “deprived spouse.” We find these designations to be pertinent and will use them in the balance of this opinion to assist in simplifying the discussion.

The present action for negligent impairment of consortium contemplates a single tortious act which injures both spouses by virtue of their relationship to each other. Rodriguez v. Bethlehem Steel Corp., 115 Cal.Rptr. at 780, 525 P.2d at 684; General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366, 371 (1972). While the impaired spouse sustains direct physical injuries, the deprived spouse sustains damage to emotional interests stemming from their relationship. In the respective causes of action, the impaired spouse would have the exclusive right to recover for the normal damages associated with such an injury — bodily injuries, medical expenses, pain and suffering, loss of earnings, et cetera. The deprived spouse would have the right to bring an action for the loss of consortium and seek recovery on the basis of harm to the intangible or sentimental elements. Finally, while the deprived spouse’s suit for loss of consortium is considered to be derivative of the impaired spouse’s negligence action to the extent that the tortfeasor’s liability to the impaired spouse must be established, the consortium action is, nevertheless, independent and apart from that of the impaired spouse’s negligence action. See Gates v. Foley, 274 So.2d 40 (Fla.1971); Thill v. Modern Erecting Co., 284 Minn. 508, 170 N.W.2d 865 (1969); Peeples v. Sargent, 77 Wis.2d 612, 253 N.W.2d 459 (1977); W. Prosser, Handbook of the Law of Torts § 125, at 893 (4th ed. 1971).

It has been argued that the deprived spouse’s loss of consortium is an injury that is too indirect to be compensated because the elements involved are too intangible or conjectural to be measured in pecuniary terms by a jury. We do not agree, for to do so would mean that a jury would also be incompetent to award damages for pain and suffering. The character of harm to the intangible or sentimental elements is not illusory. General Electric Co. v. Bush, 498 P.2d at 370. The loss of companionship, emotional support, love, felicity, and sexual relations are real, direct, and personal losses. See Rodriguez v. Behtlehem Steel Corp., supra; Ekalo v. Constructive Service Corp., 46 N.J. 82, 215 A.2d 1 (1965); Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897 (1968); Note, Judicial Treatment of Negligent Invasion of Consortium, 61 Colum.L.Rev. 1341 (1961). It is recognized that these terms concern subjective states which present some difficulty in translating the loss into a dollar amount. The loss, however, is a real one requiring compensation, and “the issue generally must be resolved by the ‘impartial conscience and judgment of jurors who may be expected to act reasonably, intelligently and in harmony with the evidence.’ ” Rodriguez v. Bethlehem Steel Corp., 115 Cal.Rptr. at 777, 525 P.2d at 681.

As previously noted, there are no decisions by this court holding that a husband could recover for loss of consortium when his wife was negligently injured by a third party. In the case of Garrett v. Reno Oil Co., 271 S.W.2d 764 (Tex.Civ.App.—Fort Worth 1954, writ ref’d n. r. e.), it was expressly held that the wife had no such cause of action when her husband was negligently injured by a third party. Whittle-sey therefore contends that no cause of action exists for either spouse as a result of the above facts, and, consequently, a new cause of action should only be created by the Legislature. This contention is primarily based on statements in the Garrett opinion that the wife’s action would be denied until the Legislature effected the change. An analysis of the law in effect at the time of the Garrett decision reveals that there were only a few jurisdictions that recognized the wife’s cause of action. This fact well accounts for the court’s reluctance in deviating from the common law rule then in effect that was so “universal and of such long standing.” Garrett v. Reno Co., 271 S.W.2d at 766.

Such an abdication of judicial responsibility is no longer called for in light of present social realities. The law is not static; and the courts, whenever reason and equity demand, have been the primary instruments for changing the common law through a continual re-evaluation of common law concepts in light of current conditions. See Rodriguez v. Bethlehem Steel Corp., supra; Gates v. Foley, supra; Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881 (1960); Comment, The Negligent Impairment of Consortium — A Time for Recognition as a Cause of Action in Texas, 7 St. Mary’s L.J. 864, 881— 82 (1976). Providing either spouse with a cause of action for loss of consortium would allow us to keep pace with modern society by recognizing that the emotional interests of the marriage relationship are as worthy of protection from negligent invasion as are other legally protected interests. See Green, Protection of the Family Under Tort Law, 10 Hastings L.J. 287 (1959).

Therefore, we hold that either spouse has a cause of action for loss of consortium that might arise as a result of an injury caused to the other spouse by a third party tortfeasor’s negligence. This holding not only aligns Texas with the majority of jurisdictions recognizing the action for either spouse, but it also corrects a paradox in the law of this state in that heretofore the marital relationship has been protected from only intentional invasions. Finally, we expressly disapprove of the Garrett v. Reno Oil Co. decision to the extent that it conflicts with this opinion.

Whittlesey also contends that the cause of action does not exist for either spouse in Texas for the reason that marital rights and property are not governed by the common law but by the community property rules of the civil law. Under this view the Legislature must expressly authorize the action, which it has neglected to do here. This contention fails for the reason that, although touching on the marital relationship, the right to recover for the loss of consortium is a tort action recognized at common law. See, e. g., Hyde v. Seyssor, 79 Eng.Rep. 462 (K.B.1619).

Whittlesey argues that there is a possibility of a double recovery if the cause of action is allowed. To allow the deprived spouse to recover for damages arising from an injury to the impaired spouse after the impaired spouse has been compensated would mean the community could recover twice for the same injury. This is not so. First, as we have previously indicated in this opinion, there is no duplication of recovery. Each spouse recovers for losses peculiar to the injury sustained by each of them. On the one hand, the impaired spouse recovers for those distinct damages arising out of the direct physical injuries. On the other hand, the recovery for the loss of consortium by the deprived spouse is predicated on separate and equally distinct damages to the emotional interests involved. Furthermore, it cannot be said that the character of the deprived spouse’s recovery for loss of consortium is community property. It is clear that a recovery for personal injuries in Texas, other than that for loss of earning capacity, is the separate property of that spouse. See Graham v. Franco, 488 S.W.2d 390 (Tex.1972); Tex. Family Code Ann. § 5.01(a)(3); McKnight, Matrimonial Property, 26 Sw.L.J. 31, 49 n. 149 (1972).

Neither are we persuaded by Whitt-lesey’s argument that Ann Miller’s action, as the deprived spouse, is barred by the settlement agreement executed by her husband. The settlement related solely to the claims of the husband arising out of the accident. The wife did not sign the release nor can the language of the release be construed to apply to her separate and independent claim for loss of consortium. Moreover, there was no showing that the husband had the authority to enter into a settlement on behalf of his wife. Consequently, we hold that the settlement executed by the husband in this case did not preclude the wife’s right to pursue her cause of action for loss of consortium. This result obtains because a personal injury recovery is, as stated above, the separate property of the spouse recovering it. Section 5.21 of the Texas Family Code states that “[e]ach spouse has the sole management, control, and disposition of his or her separate property.” In the absence of evidence showing authority, the mere relationship of husband and wife does not give the husband authority to contract with regard to the wife’s separate property. Therefore, the deprived spouse had the sole power to settle her claim because of her management powers. See Myers v. Thomas, 502 S.W.2d 941 (Tex.Civ.App.—Beaumont 1973, no writ); Jamail v. Thomas, 481 S.W.2d 485 (Tex.Civ.App.—Houston [1st Dist.] 1972, writ ref’d n. r. e.); McKnight, Matrimonial Property, 22 Sw.L.J. 129, 132 (1968). See generally W. Prosser, Handbook of the Law of Torts § 125, at 893 (4th ed. 1971).

As to the retroactive application of our holding that either spouse has a cause of action for the negligent impairment of consortium where the other spouse has been negligently injured by a third party, we declare, as a matter of sound administration and fairness, that this holding shall be applicable only in the present case and those actions arising after the effective date of this decision.

Accordingly, we affirm the judgment of the court of civil appeals.

      . The phrase “loss of consortium” is more accurately described as an element of damage rather than a cause of action. But courts have so frequently used the phrase to denote those actions in which loss of consortium is the major element of damage that “loss of consortium” has come to be referred to as. a cause of action.

      . The term “services” is generally taken to include the performance by a spouse of household and domestic duties. See Collier v. Collier, 182 Md. 82, 32 A.2d 469 (1943); Tribble v. Gregory, 288 So.2d 13 (Miss.1974). In Texas, it is a concept that is entirely separate and distinct from that of consortium. In our community property system the husband and wife are equal; as such, a spouse’s services counterbalance the other spouse’s duty to support the community with earnings. See Gainesville, H. & W. Ry. v. Lacy, 86 Tex. 244, 24 S.W. 269 (1893); Firence Footwear Co. v. Campbell, 406 S.W.2d 516 (Tex.Civ.App.—Houston 1966), rev’d on other grounds on motion for rehearing, 411 S.W.2d 636 (Tex.Civ.App.—Houston 1967, writ ref’d n. r. e.). Furthermore, the services of the spouse performing such are thus recoverable as a damage to the community. See McKnight, Matrimonial Property, 26 Sw.L.J. 31, 49 n. 149 (1972).

      . It should be noted that the tort action of criminal conversation was recently abolished by the Legislature. Tex.Family Code Ann. § 4.05 (Supp.1978).

      . The history of both the husband’s and wife’s action for loss of consortium has been recounted numerous times in opinions on the subject by the courts of other states. We do not think it is necessary for us to do so here. However, for a detailed discussion of both the purpose and development of the spouses’ respective actions, see Comment, The Negligent Impairment of Consortium—A Time for Recognition as a Cause of Action in Texas, 7 St. Mary’s L.J. 864 (1976).

      . Because of this holding, a detailed discussion of the effect of the Texas Equal Rights Amendment on the validity of the wife’s cause of action is unnecessary. The court of civil appeals noted that although there were no Texas decisions expressly holding that a husband could recover damages for the loss of his wife’s consortium when she was negligently injured by a third party, that right existed at common law and was thus incorporated into the law of this state in 1840. See Tex.Rev.Civ.Stat.Ann. art. 1 (19’69). In recognizing the wife’s right of recovery, the court reasoned that after the Texas Equal Rights Amendment, Tex.Const. art. I, § 3a, was adopted, this modified the common law to such an extent that it would be improper to deny the right to recover based upon the sex of the party bringing the suit.

      . Either by statute or judicial decision, the cause of action for either spouse for the loss of consortium has been recognized in the great majority of states. This has long been favored by legal commentators. See, e. g., 1 F. Harper & F. James, The Law of Torts, § 8.9, at 643 (1956); W. Prosser, Handbook of the Law of Torts, § 125, at 888-94 (4th ed. 1971); Hol-brook, The Change in the Meaning of Consortium, 22 Mich.L.Rev. 1 (1923); Lippman, The Breakdown of Consortium, 30 Colum.L.Rev. 651 (1930); Comment, The Development of the Wife’s Cause of Action for Loss of Consortium, 14 Catholic Law. 246 (1968); Note, Judicial Treatment of Negligent Invasion of Consortium, 61 Colum.L.Rev. 1341 (1961). The nine states not recognizing the action are: Connecticut: Lockwood v. Wilson H. Lee Co., 144 Conn. 155, 128 A.2d 330 (1956); Kansas: Hoffman v. Dautel, 192 Kan. 406, 388 P.2d 615 (1964); Louisiana: Bourque v. American Mut. Liab. Ins. Co., 345 So.2d 237 (La.App.1977); New Mexico: Roseberry v. Starkovich, 73 N.M. 211, 387 P.2d 321 (1963); North Carolina: Cozart v. Chapin, 35 N.C.App. 254, 241 S.E.2d 144 (1978); Utah: Ellis v. Hathaway, 27 Utah 2d 143, 493 P.2d 985 (1972); Virginia: Carey v. Foster, 221 F.Supp. 185 (E.D.Va.1963), aff’d, 345 F.2d 772 (4th Cir. 1965); Washington: Ash v. S. S. Mullen, Inc., 43 Wash.2d 345, 261 P.2d 118 (1953); Wyoming: Bates v. Donnafieid, 481 P.2d 347 (Wyo.1971).


text:
    Sherman McBEATH, Administrator, Relator, v. Honorable Charles D. MATHEWS, Judge, et al., Respondents.
    No. B-7828.
    Supreme Court of Texas.
    Oct. 11, 1978.
    John L. Hill, Atty. Gen., Joe B. Dibrell, Jr. and Max P. Flusche, Jr., Asst. Attys. Gen., McGinnis, Lochridge & Kilgore, B. D. St. Clair, Austin, Whitten, Sprain, Price, Wagner & Edwards, C. G. Whitten, Bradbury, Tippen & Choate, Thomas W. Choate, Abilene, Fillmore & Camp, Roy B. Johnson and Patrick H. O’Neill, Fort Worth, for relator.
    Ray & Wood, Randall Wood, Clark, Thomas, Winters & Shapiro, Donald Scott Thomas and Mary Joe Carroll, Austin, for respondents.
   CHADICK, Justice.

A local option election authorized by Texas Alcoholic Beverage Code, Sec. 251.01 et seq., was held in Justice Precinct 1, Taylor County, Texas, on June 17,1978. The Commissioners Court of Taylor County canvassed the election returns and entered on its minutes two separate and conflicting orders declaring the results of the election. The first order, dated July 10, 1978, declared that the proposition to legalize the sale of alcoholic beverages in the precinct was not approved by a majority of the voters in the precinct. The second order, dated July 20, 1978, declared that the proposition to legalize the sale of alcoholic beverages was approved by a majority of the voters. Two election contest proceedings have been filed and are now pending in a district court of Taylor County challenging the results declared by each of these Commissioners Court orders.

The record does not show the date of filing, but prior to August 14, 1978, a suit for declaratory judgment and injunctive relief, Cause No. 278,046, styled Irby Fox v. Texas Alcoholic Beverage Commission, Sherman McBeath, Administrator, was instituted in a district court of Travis County. Plaintiff Fox was joined by several interve-nor-plaintiffs, and Texas Alcoholic Beverage Commission and its Administrator were also joined by several intervenor-defend-ants. A temporary restraining order was granted, and judgment was rendered on August 22,1978. The relief granted by the judgment was in these terms:

“That the Order of the Commissioners’ Court of Taylor County, Texas, made on July 10,1978, as the result of a canvass of the votes cast in a local option election held in Justice Precinct 1, Taylor County, Texas, on June 17, 1978, was under the terms of Section 251.52 of the Texas Alcoholic Beverage Code prima facie evidence that all provisions of law had been complied with in giving notice of and holding the election, counting and returning the votes, and declaring the results of the election.
“That the July 10 Order of the Commissioners’ Court could be attacked only by an election contest authorized and controlled by Section 251.55 of the Alcoholic Beverage Code.
“That the judgment of the 42nd District of Taylor County, Texas, in Cause No. 35,885-A, James P. Dunigan, et al. v. Roy Skaggs, County Judge, et al., was a mandamus action and not an election contest and was therefore totally void as a matter of law.
“That the second canvass of votes of the June 17, 1978 local option election held in Justice Precinct 1, Taylor County, Texas made by the Commissioners’ Court oh July 20, 1978, in response to the judgment entered in Cause No. 35,885-A, noted above, was beyond the authority of the Commissioners’ Court and was, therefore, void as a matter of law.
“All relief not herein specifically granted is hereby denied.”

Texas Alcoholic Beverage Commission and Sherman McBeath, Administrator, applied for and were granted leave by this Court to file an application for a writ of mandamus directing the Travis County district court to set aside and vacate the judgment quoted above in Cause No. 278,046.

The initial question presented is whether a district court of Travis County has jurisdiction to declare the validity vel non of orders of the Commissioners Court of Taylor County canvassing and declaring the results of the local option election held June 17,1978 in Justice Precinct 1, Taylor County.

The respondents as plaintiffs in Cause No. 278,046 pleaded that the Taylor County Commissioners Court’s canvass of the local option election returns and declaration of the election result, as shown by such court’s order of July 10, 1978, was a valid determination by the Commissioners Court that the legal sale of alcoholic beverages in the precinct was not approved by a majority of the voters in the election held June 17, 1978. They also pleaded that: “This is a suit for declaratory judgment and injunctive relief and involves the validity of the Order of the Taylor County Commissioners Court dated the 20th day of July, 1978, a copy noted as Exhibit ‘A’ is attached, purporting to declare the result of a local option election held June 17, 1978 in and for the residents of Justice Precinct 1, Taylor County, Texas. Specifically, plaintiff seeks declaratory judgment as authorized by Article 2524-1, V.A.T.S. to the effect that the above cited Order of the Commissioners Court is invalid.”

The statute providing for local option elections, Texas Alcoholic Beverage Code, Section 251.55(c) says in part that:

The district court of the county in which the election is held has original and exclusive jurisdiction of all suits to contest the election. The district court has jurisdiction to try and determine all matters connected with the election.

The statute confers original and exclusive jurisdiction on the district court of Taylor County for trial of any controversy governed by the statute arising out of the local option election on June 17, 1978 in Precinct 1, Taylor County. A suit is an election contest when the validity of a local option election, or the correct ascertainment of the result thereof, is its subject matter. See Clary v. Hurst, 104 Tex. 423, 138 S.W. 566 (1911); Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012 (1924); Ellis v. Vanderslice, 486 S.W.2d 155 (Tex.Civ.App.—Dallas 1972, no writ); Garza v. City of Robstown, 483 S.W.2d 32 (Tex.Civ.App.—Corpus Christi 1972, no writ). The statute conferred no jurisdiction of the subject matter pleaded in Cause No. 278,046 upon the district court of Travis County and that court was without authority to entertain the suit or render judgment therein. It follows that the judgment in Cause No. 278,046 is void. Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (1959); Cline v. Niblo, 117 Tex. 474, 8 S.W.2d 633 (1928).

We are satisfied that the Texas Alcoholic Beverage Commission does not have another plain, adequate or effective remedy commensurate with the urgent need to operate in an orderly and consistent manner and that it cannot obtain appropriate redress through other remedial process. The writ of mandamus is granted, and we have been notified that the trial court has complied therewith.

      . This suit is the subject of this controversy and to avoid lengthy, repetitive descriptions of it, hereafter, it will be referred to simply as Cause No. 278,046.


text:
    Wallace HOLYFIELD, Petitioner, v. MEMBERS MUTUAL INSURANCE COMPANY, Respondent.
    No. B-7662.
    Supreme Court of Texas.
    Oct. 11, 1978.
    Rehearing Denied Nov. 22, 1978.
    James E. Brown, Dallas, for petitioner.
    Moore & Peterson, Tom J. Stollenwerck, Dallas, for respondent.
   PER CURIAM.

This suit originated when Holyfield sought to recover Personal Injury Protection (PIP) benefits under a policy he had purchased from Members Mutual Insurance Company. The policy covered the two vehicles which were scheduled and a separate premium was paid for the PIP coverage on each vehicle.

The policy basically limited PIP coverage to those injuries sustained while riding either in: 1) an owned and scheduled vehicle; 2) a replacement vehicle as defined by the policy; or 3) an unowned vehicle. Holy-field’s son, who was covered by the policy, was injured while riding a motorcycle which was owned by Holyfield but not scheduled on the policy. Therefore, under the terms of the policy, he was not covered and the insurer denied coverage.

A summary judgment was rendered for the insurer, Members Mutual, on the basis that an accident which occurs on an owned but unscheduled vehicle was excluded by the policy. The court of civil appeals sitting in Dallas affirmed. 566 S.W.2d 28.

Holyfield bases his claim for benefits on the decision of Western Alliance Insurance Co. v. Dennis, 529 S.W.2d 838 (Tex.Civ.App.—Texarkana 1975, no writ). That decision concluded that an exclusion similar to the one in the present case, which limited PIP coverage to only those injuries suffered in owned vehicles that were scheduled on the policy, was an unauthorized limitation on the coverage required by Article 5.06-3 Texas Insurance Code Annotated. We disapprove that decision and its construction of the Texas Insurance Code and its interpretation of Westchester Fire Insurance Co. v. Tucker, 512 S.W.2d 679 (Tex.1974). We agree with the result reached in the instant case.

The application for writ of error is refused, no reversible error.


author: ROBERTS, Judge.

text:
    David Travis CLELAND, Appellant, v. The STATE of Texas, Appellee.
    No. 54099.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 31, 1978.
    Rehearing Denied Nov. 15, 1978.

      Antonia M. I. Ingversen, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Timothy P. Alexander, Asst. Dist. Attys., Houston, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from an order of the court revoking the appellant’s probation. The trial judge found that the appellant had violated a condition of his probation and sentenced the appellant to five years in the Texas Department of Corrections.

The appellant contends that the trial judge erred by failing to hold a hearing to determine whether the appellant violated the terms and conditions of his probation, and that the evidence was insufficient to support the revocation. We affirm.

On September 10, 1971, the appellant pleaded guilty to the offense of felony theft [Cause No. 126,102 in the 177th District Court of Harris County (our Cause No. 54,-099)]. The appellant was assessed a five-year probationary term. One of the conditions of the appellant’s probation was that he “(a) [cjommit no offense against the laws of this or any other State or the United States.”

On August 8, 1974, the State filed its motion to revoke the appellant’s probation in the present case — Cause No. 126,102 (our Cause No. 54,099) — and alleged the following as grounds for the revocation:

“THAT said Defendant committed the offense of AGGRAVATED ROBBERY on or about the 26th day of July, 1974 in Harris County, Texas.”

On August 26, 1974, an indictment was filed in the 177th District Court of Harris County. This indictment, Cause No. 217,-020 (our Cause No. 54,100), alleged that on July 26, 1974, the appellant

“while in the course of committing theft of money owned by Stephanie Wolff, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly cause bodily injury to the Complainant.”

On January 21 and 22,1975, the appellant went to trial in Cause No. 217,020 (our Cause No. 54,100), and after the jury returned a verdict of guilty, the trial judge assessed the appellant’s punishment. Immediately thereafter, the trial judge stated:

“And the Court, now, in [sic] its own motion, in Cause No. 126,102, [our Cause No. 54,099] having that case presently before me, I am ordering that the probation granted to David Travis Cleland for a period of five years for the offense of felony theft be revoked, based upon the testimony and evidence that this Court has heard in connection with the trial, with the ease now on trial.” [Cause No. 217,020 (our Cause No. 54,100)]

Thus, the trial judge took judicial notice of the testimony adduced in Cause No. 217,-020 (our Cause No. 54,100) and concluded that the appellant’s probation in the present case — Cause No. 126,102 (our Cause No. 54,-099) — should be revoked. The judgment revoking the appellant’s probation and sentence in the present case — Cause No. 126,-102 (our Cause No. 54,099) — reflect that the trial judge found that the appellant “committed the offense of Aggravated Robbery on or about the 26th day of July, 1974 in Harris County, Texas.”

We initially consider the appellant’s second contention that the evidence is insufficient to support the revocation.

The trial testimony from Cause No. 217,-020 (our Cause No. 54,100), of which the trial judge took judicial notice, is not in-eluded in the appellate record in the present case [i. e., Cause No. 126,102 (our Cause No. 54,099)].

In Bradley v. State, 564 S.W.2d 727 (Tex.Cr.App.1978), we addressed an identical problem. Although we abated the appeal in Bradley, we there stated:

“At least three methods are available to cure, for review process purposes, the failure of the record of the probation revocation hearing to reflect the testimony judicially noticed therein, should some issue resting on that testimony, such as the sufficiency of the evidence, be raised in the probationer’s appeal brief. These depend, however, on a sufficient identification at the revocation hearing of the trial proceedings judicially noticed. If such trial proceedings are clearly identified, and if the facts so noticed are necessary for disposition of an issue raised on the appeal, one of the following methods may be followed, according to the circumstances.
“If the criminal trial judicially noticed resulted in an appeal to this Court, and if the record in that appeal contains transcribed court reporter’s notes reflecting the testimony judicially noticed, or otherwise reflects that testimony, it will be sufficient for the State to cite and rely on that record of this Court in its reply brief. We will judicially notice the record of the same testimony noticed by the trial court. In order to do so, however, the record of the revocation hearing must clearly reflect the precise matter judicially noticed.” Id. at 732.

In the present case, it is clear that the testimony judicially noticed in the present case — Cause No. 126,102 (our Cause No. 54,099) — was the trial testimony from Cause No. 217,020 (our Cause No. 54,100). It is equally clear that Cause No. 217,020 (our Cause No. 54,100) resulted in an appeal to this Court. See Cleland v. State (Tex.Cr.App.1978), No. 54,100 (delivered April 12, 1978). Moreover, the appellate record in Cause No. 217,020 (our Cause No. 54,-100) contains a transcription of the court reporter’s notes reflecting the testimony which the trial judge judicially noticed in the present case [Cause No. 126,102 (our Cause No. 54,099)].

Our review of the transcription of the court reporter’s notes contained in the appellate record in Cause No. 217,020 (our Cause No. 54,100) reveals that on July 26, 1974, at approximately 3:00 p. m., the appellant went into a service station at 6650 South Main in Houston. The appellant gave Rose Wolff a dollar for a pack of cigarettes. As Wolff was getting the appellant’s change out of the cash box, the appellant sprayed mace into Wolff’s eyes. As Wolff staggered backwards and started to rub her eyes, the appellant started to grab the money in the cash box. Wolff apparently recovered and was able to dislodge the money from the appellant’s grasp.

The appellant then began to flee. Wolff ran after the appellant while screaming for assistance. A number of men in the immediate vicinity heard Wolff’s screams and apprehended the appellant.

The trial judge revoked the appellant’s probation on the basis that he committed an aggravated robbery. The motion to revoke alleged that the appellant committed robbery. In Pickett v. State, 542 S.W.2d 868, 870 (Tex.Cr.App.1976), we stated that

“[probation may not be revoked upon a finding of any violation of the law other than that alleged or necessarily included within the allegations of that alleged in the motion to revoke. Franks v. State, Tex.Cr.App., 516 S.W.2d 185; Ford v. State, Tex.Cr.App., 488 S.W.2d 793.”

Obviously, aggravated robbery is not a lesser included offense of robbery. Article 37.09, Vernon’s Ann.C.C.P. Therefore, the trial judge should not have revoked the appellant’s probation for aggravated robbery since it was not alleged in the State’s motion to revoke.

However, we do find the evidence sufficient to support a finding that the appellant committed robbery on July 26, 1974. Therefore, pursuant to our authority under Article 44.24(b), Vernon’s Ann.C.C.P., the order revoking the appellant’s probation and sentence are reformed to state that the appellant’s probation was revoked upon a finding that he committed the offense of robbery. See Pickett v. State, supra; Hancock v. State, 491 S.W.2d 139 Tex.Cr.App. 1973). Appellant’s first contention is overruled.

The appellant’s first contention is that the trial judge abused his discretion by failing to hold a hearing to determine whether the appellant’s probation should be revoked. The appellant relies upon Article 42.12, Section 8(a), which states:

“At any time during the period of probation the court may issue a warrant for violation of any of the conditions of the probation and cause the defendant to be arrested. Any probation officer, police officer or other officer with power of arrest may arrest such defendant without a warrant upon the order of the judge of such court to be noted on the docket of the court. A probationer so arrested may be detained in the county jail or other appropriate place of detention until he can be taken before the court. Such officer shall forthwith report such arrest and detention to such court. If the defendant has not been released on bail, on motion by the defendant the court shall cause the defendant to be brought before it for a hearing within 20 days of filing of said motion, and after a hearing without a jury, may either continue, modify, or revoke the probation. The court may continue the hearing for good cause shown by either the defendant or the state. If probation is revoked, the court may proceed to dispose of the case as if there had been no probation, or if it determines that the best interests of society and the probationer would be served by a shorter term of imprisonment, reduce the term of imprisonment originally assessed to any term of imprisonment not less than the minimum. prescribed for the offense of which the probationer was convicted.”

At the outset, we notice that the appellant did not file a motion demanding a hearing. Assuming that the appellant had a right to a revocation hearing, we hold that the appellant waived his right to such a hearing.

On August 8, 1974, the motion to revoke was filed. A hearing on the motion to revoke was originally scheduled for September 13, 1974. Thereafter, the hearing was reset three times prior to December 20, 1974. The docket sheet reflects the following entry on December 20, 1974: “Dec. 20, 1974 Previously reset to 1-20-75 For Trial.”

On January 21 and 22, 1975, a trial was held in Cause No. 217,020 (our Cause No. 54,100) and after the jury returned a verdict of guilty, the trial judge assessed the appellant’s punishment. Immediately thereafter, the trial judge stated:

“And the Court, now, in its own motion, in Cause No. 126,102, [our Cause No. 54,-099] having that case presently before me, I am ordering that the probation granted to David Travis Cleland for a period of five years for the offense of felony theft be revoked, based upon the testimony and evidence that this Court has heard in connection with the trial, with the ease now on trial.” [Cause No. 217,020 (our Cause No. 54,100)]

The appellant did not object to the trial judge’s action.

As noted above, the basis of the trial judge’s revocation order was the testimony he heard in connection with Cause No. 217,-020 (our Cause No. 54,100) and of which he took judicial notice. Given the appellant’s advance notice that the revocation proceeding would be connected in some manner with the trial, as indicated by the December 20, 1974, docket entry, and the basis of the trial judge’s revocation order, we can discern no policy which dictates that the appellant could not have waived his right to a revocation hearing. Therefore, we conclude that the appellant waived his right to a revocation hearing. Appellant’s first contention is overruled.

The judgment is reformed, and as reformed, is affirmed.

VOLLERS, J., concurs in the results.

      . Cf. Franks v. State, 516 S.W.2d 185, 188, n. 3 (Tex.Cr.App.1974).

      . This Court has never held that a probationer is entitled to a revocation hearing. We have held, however, that upon demand, a probationer has a statutory right under Article 42.12, Section 8(a), Vernon’s Ann.C.C.P., to a prompt hearing on a motion to revoke. Ex Parte Trillo, 540 S.W.2d 728 (Tex.Cr.App.1976). Nevertheless, implicit in our decisions is the proposition that due process requires a hearing before a probationer’s probation can be revoked. See Whisenant v. State, 557 S.W.2d 102 (Tex.Cr.App.1977).


author: ODOM, Judge.

text:
    Claude Eugene PAYTON, Appellant, v. The STATE of Texas, Appellee.
    No. 54167.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 4, 1978.
    Rehearing Denied Nov. 15, 1978.

      Michael J. Whitten, Denton, for appellant.
    John Lawhon, County Atty. and Mervin B. Waage, Asst. County Atty., Denton, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

ODOM, Judge.

This is an appeal from a conviction for assault. V.T.C.A., Penal Code Sec. 22.-01(a)(1). Punishment was assessed by the court at six months in jail.

On original submission the conviction was affirmed in a per curiam opinion Tex.Cr.App., 563 S.W.2d 278. In one ground of error appellant complained of the trial court’s action in sua sponte excusing a venireman who was qualified to sit on the jury. On original submission the ground of error was overruled because the entire voir dire was not included in the record on appeal. By motion for rehearing appellant urged that the entire voir dire was not needed to determine the issue. We granted leave to file his motion for rehearing in order to address this issue.

The record on appeal reflects that during the trial court’s qualification of the entire panel venireman Beck was held disqualified as a matter of law by the trial court over appellant’s objection. It was shown that Beck had been convicted of felony driving while intoxicated, was placed on probation, and had satisfactorily served out his probation term and been discharged. Art. 35.19, V.A.C.C.P. provides:

“No juror shall be impaneled when it appears that he is subject to the second, third, or fourth cause of challenge in Article 35.16, though both parties may consent.”

Article 35.16(a)(2), V.A.C.C.P., provides for such disqualification where it appears “that he has been convicted of theft or any felony.” The court and counsel examined the portion of Article 42.12, Sec. 7, V.A.C.C.P., that provides:

“. . . In case the defendant has been convicted or has entered a plea of guilty or a plea of nolo contendere and the court has discharged the defendant hereunder, such court may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty, except that proof of his said conviction or plea of guilty shall be made known to the court should the defendant again be convicted of any criminal offense.” (Emphasis added.)

Appellant urged that the emphasized language released Beck from the absolute disqualification of a felony conviction. The trial court ruled that Beck was disqualified and appellant excepted to the court’s ruling.

The trial court should not excuse a venireman on grounds that do not constitute an absolute disqualification. Henricksen v. State, Tex.Cr.App., 500 S.W.2d 491, 493; Ernster v. State, 165 Tex.Cr.R. 422, 308 S.W.2d 33. It was error to rule that Beck was absolutely disqualified under the law. He had been “released from all penalties and disabilities” resulting from his earlier conviction, including the disability to serve on a jury. See Op.Atty.Gen.1970, No. M-640. We must determine whether this error is reversible.

On original submission the Court wrote:

“In Wood v. State [Tex.Cr.App.], 486 S.W.2d 771, we stated:
“ ‘Three of appellant’s grounds of error concern alleged errors committed by the trial court during the voir dire examination of the jury. The record contains only portions of the voir dire examination. The entire voir dire examination must be brought before this Court in order to enable us to ascertain whether error has been shown. Longs v. State, Tex Cr.App., 429 S.W.2d 157; McCullough v. State, Tex.Cr.App., 425 S.W.2d 359.’ Having failed to present the entire voir dire examination, there is no showing of harm, and therefore nothing is presented for review. Guerrero v. State [Tex.Cr.App.], 487 S.W.2d 729; Brown v. State [Tex.Cr.App.], 508 S.W.2d 91; Graves v. State [Tex.Cr.App.], 513 S.W.2d 57.”

Of the six cases cited on original submission, in McCullough and Long the issue was whether counsel was unduly limited in his voir dire examination, in Guerrero and Graves none of the voir dire examination was in the record on appeal, and in Wood the opinion did not reflect what complaints were raised on appeal.

In Brown complaint was raised to the trial court’s denial of the defendant’s challenge for cause. The Court wrote:

“Appellant struck the juror from the panel and made no attempt to show that he was required to take an objectionable juror. Only the voir dire examination of this one juror was recorded. This Court has consistently held that in order to complain of the exclusion of a qualified juror or inclusion of an allegedly disqualified juror, the appellant must show he was injured or forced to proceed with an objectionable juror. Page v. State, Tex.Cr.App., 486 S.W.2d 300; Williams v. State, Tex.Cr.App., 481 S.W.2d 119.”

On its facts, Brown is not on point in that the case concerned denial of the defendant’s challenge for cause rather than erroneous exclusion of a prospective juror by the court. To the extent that Brown addresses and equates the tests for exclusion of a qualified juror and inclusion of a disqualified juror, Hernandez v. State, Tex.Cr.App., 563 S.W.2d 947, makes it clear that the entire voir dire examination is not necessary to determine the issue. The lucid and thoroughly logical approach set out in Hernandez, however, also illustrates why the test for harm where a defendant’s challenge for cause is erroneously denied is not an appropriate test in cases where the trial court erroneously excludes a qualified juror. In Hernandez, quoting from Wolfe v. State, 147 Tex.Cr.R. 62, 178 S.W.2d 274, the Court wrote:

“. . . in the trial of a criminal case where an accused has been wrongfully deprived of a peremptory challenge by being forced to use such upon a juror who was shown to be subject to a challenge for cause, and such accused has exhausted his peremptory challenges, and a further juror be presented whom he states to be objectionable to him, then it will not be necessary for accused to show in what manner such further juror was objectionable to him, nor to show that such juror was an unfair or partial juror.

It is clear that the test devised to show harm for improper denial of a defendant’s challenge for cause is tailored to fit the effect of such an erroneous ruling: having used a peremptory strike against one properly subject to challenge, the accused is effectively deprived of one of his peremptory strikes by the erroneous ruling. No such effect attends an erroneous exclusion of a qualified juror: the accused still has all his peremptory challenges available. Since the harm to the accused differs according to whether the erroneous ruling is an improper denial of his challenge for cause, or an improper exclusion of a qualified juror, the test for reversible error should also be different. We disavow the language in Brown that indicates the same test applies to both types of error.

What is the harmful effect upon the accused of an erroneous exclusion sua sponte or on challenge for cause by the State? If the prospective juror is not subject to the alleged disqualification, and if the defendant objects to the trial court’s erroneous exclusion of the venireman, then the effect, from the perspective of the defendant, is the same as if the State had been given an extra peremptory challenge. On this reasoning, harm would be shown if the State exercised.all its peremptory challenges on other veniremen. This test for harm is supported by language in Pearce v. State, Tex.Cr.App., 513 S.W.2d 539, where in addressing a challenge to the trial court’s sua sponte dismissal of a venireman this Court wrote:

“There is no showing that the State exhausted its peremptory challenges and that the prospective juror, claimed to have been improperly excused, would have served except for the court’s action.”

In Culley v. State, Tex.Cr.App., 505 S.W.2d 567, on another challenge to the erroneous exclusion of a prospective juror, the Court wrote:

“There is no showing that appellant did not have a fair and impartial jury, nor that the State had exhausted its peremptory challenges, one of which might have been used to eliminate the prospective juror.” (Emphasis added.)

We find this test expressed in Pearce and Culley to be appropriate to the issue before us.

We summarize the rules. While inclusion in the record of the entire voir dire is necessary to decide issues regarding denial of questions sought to be posed to prospective jurors, Burkett v. State, Tex.Cr.App., 516 S.W.2d 147, when the issue concerns denial of a challenge for cause or exclusion of a qualified venireman, only the examination of the individual venireman need be in the record. Then harm may be shown in the denial of challenge for cause by showing exhaustion of the defendant’s peremptory challenges, .denial of a request for additional peremptory challenges, and the seating of a juror upon whom the defendant would have exercised peremptory challenge. Hernandez v. State, Tex.Cr.App., 563 S.W.2d 947. Harm may be shown in the erroneous exclusion of a qualified juror by showing the State exhausted its peremptory challenges. Pearce v. State, supra, and Culley v. State, supra. These rules allow correction of the error, in the former by giving the defendant an extra peremptory challenge to compensate for the one used against the venireman who was subject to challenge for cause, and in the latter by the State’s reserving unused one of its peremptory challenges for constructive use against the erroneously excluded venireman.

In the instant case the record shows not only the erroneous exclusion of venireman Beck; it also shows that the State used all of its peremptory challenges against other veniremen. Reversible error is shown.

Appellant’s motion for rehearing is granted and the judgment is reversed and the cause remanded.

      . See Burkett v. State, Tex.Cr.App., 516 S.W.2d 147, for an explanation of why the entire voir dire must be presented to show reversible error in the denial of a question sought to be asked during jury voir dire.

      . A showing of denial of a fair and impartial jury would in and of itself show independent grounds for reversal, and the statement of that standard in the alternative is superfluous to the issue before us.

      . An alternative practice to the use of court reporters is the use of formal bills of exception. See Art. 40.09(6), V.A.C.C.P: