author: SAM D. JOHNSON, Justice.

text:
    Leola CARTER et al., Petitioners, v. WILLIAM SOMMERVILLE AND SON, INC., et al., Respondents.
    No. B-8049.
    Supreme Court of Texas.
    June 27, 1979.
    Rehearing Denied July 25, 1979.

      Carter, Jones, Magee, Rudberg, Moss & Mayes, Charles M. Wilson, III, Dallas, for petitioners.
    Ramey, Flock, Hutchins, Grainger & Jef-fus, Mike A. Hatchell, Tyler, for respondents.
   SAM D. JOHNSON, Justice.

This is a venue appeal in a wrongful death action involving primarily the issue of negligence per se. Leola Carter, plaintiff below and petitioner here, brought a wrongful death action in Henderson County against three parties: William Sommerville & Son, Inc., defendant below and respondent here, Lloyd Goins, and Doyle Ray Hundley. Sommerville filed a plea of privilege to be sued in its county of residence, Dallas County. The trial court overruled the plea of privilege. The court of civil appeals reversed and rendered judgment ordering that the case be transferred to Dallas County. 571 S.W.2d 953. We affirm the judgment of the court of civil appeals, but for a reason different from that expressed by that court.

This suit arises out of the death of Find-Ion Carter, an employee of the state highway department and husband of Leola Carter, plaintiff herein. On February 11, 1976 Findlon Carter was working as a flagman with a highway construction crew on State Highway 19, just south of the city of Athens, Henderson County, Texas. He was struck and killed by a pickup truck, which in turn had been struck from behind by a tractor-trailer rig driven by defendant Hundley. Hundley was an employee of defendant Goins. Goins had been employed by defendant William Sommerville & Son, Inc. to haul railroad crossties from Somer-ville, Texas to Paris, Texas.

Mrs. Carter filed this suit in the third district court, Henderson County. Sommer-ville filed a plea of privilege to be sued in Dallas County, its county of residence. In response thereto, Carter filed an amended controverting affidavit, arguing that venue was properly located where the accidental death occurred, in Henderson County, by virtue of Subdivisions 9a, 23, and 29a of Article 1995, Texas Revised Civil Statutes Annotated. After a hearing the trial court overruled the plea of privilege. No findings of fact and conclusions of law were ■ filed.

On appeal from an order overruling a plea of privilege, every reasonable intendment must be resolved in favor of the trial court judgment. James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959). Further, when no findings of fact and conclusions of law are filed, the trial court judgment implies all necessary fact-findings in support of its judgment. In reviewing the record to determine if there is any evidence supporting the judgment and its implied findings, it is proper to consider only the evidence favorable to the issue and to disregard all evidence or inferences to the contrary. Goodyear Tire & Rubber Co. v. Jefferson Const., 565 S.W.2d 916 (Tex.1978).

The court of civil appeals held that there was no evidence to support venue in Henderson County under any of the exceptions relied upon by Carter. We agree with the court’s discussion of Subdivisions 23 and 29a and, therefore, will limit our discussion to Subdivision 9a.

The venue facts necessary for a plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of the defendant’s residence under Subdivision 9a are:

(1) an act or omission of negligence occurred in the county where suit was filed;
(2) such act or omission was that of defendant in person, or that of his servant, agent or representative acting within the scope of his employment; and
(3) such negligence was a proximate cause of plaintiff’s injuries.

Carter alleged three theories of liability under this subdivision: negligence in fact, negligence per se, and respondeat superior. The court of civil appeals correctly held there was no evidence of either negligence in fact or a master-servant relationship between Sommerville and Goins (and through him, Hundley). We direct our attention only to the negligence per se holding.

Under the Texas Motor Carrier Act, defendants Goins and Hundley were required to have a permit or certificate of convenience and necessity issued from the Railroad Commission in order to operate commercially over the highways of this state between two or more incorporated cities. Tex.Rev.Civ.Stat.Ann. art. 911b, §§ 1(b), 3. Failure to comply with this requirement is a misdemeanor. Tex.Rev.Civ.Stat.Ann. art. 911i. Both Hundley, the driver of the tractor trailer,- and his employer, Goins, were aware of this requirement yet neither of them had such a certificate. The record herein reflects that Goins would often lie to police officers in order to hide his illegal conduct; i. e., his failure to have the required certificate.

Section 16(a) of the Act declares that any person or corporation who “procures, aids or abets in the violation of any provision of this Act” is guilty of a misdemeanor punishable by fine. Section 16(b) creates a civil penalty, enforceable by the Attorney General, for the same offense. Carter argues that Sommerville procured, aided or abetted in the violation of the Act by hiring Goins (and through him, Hundley), who was illegally operating without the required certificate. Consequently, Carter argues, by violating Section 16(a), a criminal statute, Sommerville was negligent per se and should be liable for the damages caused by Hundley.

The court of civil appeals held that the act of hiring alone was insufficient to establish a violation of Section 16(a). The court held instead that knowledge and intent were necessary elements of the “aiding and abetting” crime:

“Appellant [Sommerville] argues that one alleged to be an aider and abettor (1) must have knowledge of the illegality alleged plus criminal intent to violate; and (2) must actively or affirmatively encourage the principal actor in the violation, as opposed to merely consenting to it. We agree.” 571 S.W.2d 953 at 957.

Having determined that there was no evidence that Sommerville “knowingly” procured, aided or abetted in Goins’ and Hund-ley’s violations of the Act, the court of civil appeals held that Sommerville was not negligent per se. This holding conflicts with a prior holding by another court of civil appeals, Mason Feed Store v. Starks, 398 S.W.2d 392 (Tex.Civ.App.—Austin 1966, writ dism’d). It was on this ground that we granted the application for writ of error in the instant case. Tex.Rev.Civ.Stat.Ann. arts. 1821(5), 1728(2); State v. Wynn, 157 Tex. 200, 301 S.W.2d 76 (1957).

Negligence per se is a tort concept whereby a legislatively imposed standard of conduct is adopted by the civil courts as defining the conduct of a reasonably prudent person. Moughon v. Wolf, 576 S.W.2d 603 (Tex.1978). In such a case the jury is not asked to judge whether or not the defendant acted as a reasonably prudent person would have acted under the same or similar circumstances; the statute itself states what a reasonably prudent person would have done. If excuse is not raised (and it is not in this case), the only inquiry for the jury is whether or not the defendant violated the statute and, if so, whether this was a proximate cause of the accident. The court of civil appeals in the instant case did not hesitate to adopt the “procures, aids or abets” standard of conduct created by Section 16(a) as the appropriate standard of care in a civil case; the court merely held that Sommerville did not violate this legislative standard of conduct. We feel constrained, however, to examine the threshold issue of whether or not Section 16(a) appropriately defines the conduct of a reasonably prudent person.

It is well-established that the mere fact that the Legislature adopts a criminal statute does not mean this court must accept it as a standard for civil liability. Howsley v. Gilliam, 517 S.W.2d 531 (Tex.1975); Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969); Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201 (1959); East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613 (1949). It may generally be stated that the courts will not adopt a statute as a standard for negligence unless one of the purposes of the statute is to protect the class of persons to which the injured party belongs from the hazard involved in the particular case. Parrott v. Garcia, supra; East Texas Motor Freight Lines v. Loftis, supra; Worsham Buick Co. v. Isaacs, 121 Tex. 587, 51 S.W.2d 277 (1932); Missouri, K. & T. Ry. Co. of Texas v. Saunders, 101 Tex. 255, 106 S.W. 321 (1908); Restatement (Second) of Torts §§ 286-88.

The easiest type of negligence per se case is that one involving a traffic regulation. Courts have held that it is negligence per se to drive on the wrong side of the road, L. M. B. Corporation v. Gurecky, 501 S.W.2d 300 (Tex.1973), fail to stop at a railroad crossing when a train is approaching, Southern Pacific Company v. Castro, 493 S.W.2d 491 (Tex.1973), attempt to pass a vehicle when nearing an intersection, Imp-son v. Structural Metals, Inc., 487 S.W.2d 694 (Tex.1972), or knowingly permit an unlicensed individual to drive a car, Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587 (1947). See 1 Baylor L.Rev. 75 (1948). Other examples of statutes or ordinances that have been judicially adopted for purposes of imposing civil liability include legislation regulating clearance" heights of bridges and other structures crossing railroad tracks, Missouri Pac. R. Co. v. American Statesman, 552 S.W.2d 99 (Tex.1977), prohibiting participation in drag races, Parrott v. Garcia, supra, regulating the placement of telephone poles, Alpine Telephone Corporation v. McCall, 143 Tex. 335, 184 S.W.2d 830 (1944), and punishing railroad coach conductors who knowingly refuse to remove certain passengers from railroad cars, Texas & P. Ry. Co. v. Baker, 215 S.W. 556 (Tex.Com.App.—1919, holding approved).

As is readily apparent, in each of the examples listed above the statute, clearly defines the prohibited conduct. It is therefore relatively easy for the courts to analyze the statute, determine the class of persons it seeks to protect, define the protected interest of that class, and isolate the particular hazards covered by the statute. In contrast to these examples stands Section 16(a) of the Motor Carrier Act. It punishes anyone who “procures, aids or abets” in any violation of the Act. It is only by first finding a violation of some other section of the Act that the court may then find a violation of Section 16(a). Conversely, by applying a per se concept to Section 16(a), an individual could be subjected to broad and wide-ranging liability. It is our conclusion that this section of the statute, applicable to one who “procures, aids or abets” in the violation of another section of the Act, is too far removed to be adopted as a standard defining the conduct of a reasonably prudent person.

As noted above, the power of adopting or rejecting legislative standards rests with the civil courts. We may accept or reject the criminal statute or use such part thereof as may be deemed appropriate for our purposes. Rudes v. Gottschalk, supra, at 204-05. Section 16(a) is not an appropriate vehicle for the imposition of civil liability through negligence per se. The only legal consequences of its violation should be the criminal fines prescribed in Section 16(a) and the civil penalties levied in Section 16(b). There have been only two negligence per se cases involving Section 16(a): Mason Feed Store v. Starks, supra, and the instant case. These opinions, from two different courts of civil appeals, both held that an unexcused violation of Section 16(a) constitutes negligence per se. The courts disagreed, however, as to the elements of knowledge required to prove a violation of Section 16(a). To the extent that these cases conflict with our decision today, such language and holdings are disapproved.

The court of civil appeals, in the case at bar, held that while an unexcused violation of Section 16(a) would constitute negligence 'per se, there was no evidence in the record showing that Sommerville violated the statute. It is the holding of this court that a violation of Section 16(a) does not constitute negligence per se. Therefore, we reach the same result as the court of civil appeals, but for a different reason.

The judgment of the court of civil appeals is affirmed.

      . This suit was filed before the 1977 amendments to Subdivision 9a became effective. 1977 Tex.Sess.Law Serv., ch. 322, § 1, at 856.

      . “Every officer, agent, servant or employee of any corporation and every other person who violates or fails to comply with or procures, aids or abets in the violation of any provision of this Act or who violates or fails to obey, observe or comply with any lawful order, decision, rule or regulation, direction, demand, or requirement of the Commission shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than Twenty-five Dollars ($25.00), nor more than Two Hundred Dollars ($200.00), and the violations occurring on each day shall each constitute a separate offense.” Tex.Rev.Civ.Stat. Ann. art. 911b, § 16(a).

      .“Every officer, agent, servant or employee of any corporation and every other person who violates or fails to comply with or procures, aids of abets in the violation of any provision of this Act or who violates or fails to obey, observe or comply with any lawful order, decision, rule or regulation, direction, demand or requirement of the Commission shall in addition be subject to and shall pay a penalty not exceeding One Hundred Dollars ($100.00), for each and every day of such violation. Such penalty shall be recovered in any Court of competent jurisdiction in the county in which the violation occurs. Suit for such penalty or penalties shall be instituted and conducted by the Attorney General of the State of Texas, or by the County or District Attorney in the county . in which the violation occurs, in the name of the State of Texas.” Tex.Rev.Civ.Stat.Ann. art. 911b, § 16(b).

      . In this connection, the Attorney General has filed an amicus curiae brief in support of petitioner Carter’s application for writ of error. The Attorney General expresses concern that his efforts to enforce the Motor Carrier Act through Section 16(a)’s misdemeanor fines and Section 16(b)’s civil penalties will be “hampered tremendously, if not completely stymied,” if the court of civil appeals opinion requiring actual knowledge, criminal intent, and active or affirmative encouragement is allowed to stand. Because of the manner in which we dispose of this case, there is no need to reach this question. Suffice it to say, however, that our opinion should not be read as approving the court of civil appeals writing on this point, nor should that portion of the court of civil appeals opinion relating thereto carry any great precedential weight when the issue is raised in the context suggested by the Attorney General.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sonya A. McCRAY, Petitioner, v. George McCRAY, Jr., Respondent.
    No. B-8272.
    Supreme Court of Texas.
    June 27, 1979.

      Duane T. Corley, Conroe, for petitioner.
    Crews & Field, James W. Steele and L. P. Tower, Conroe, for respondent.
   PER CURIAM.

Sonya McCray brought this action against her former husband, George McCray, to enforce a contractual alimony agreement contained in a prior divorce decree. The trial court rendered summary judgment for Sonya, and George appealed. The court of civil appeals, with one justice dissenting, reversed the judgment and remanded the cause for trial. 576 S.W.2d 669. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Paragraph 2 of the decree rendered in the original divorce proceeding provides:

And it appearing and was announced to the court that the parties hereto had agreed to a property settlement which in brief is that Petitioner GEORGE McCRAY, is to pay to Respondent the sum of $25,000.00 cash of which no more than $10,000.00 may be represented by salable real property. Further that the Petitioner is to pay to the Respondent the sum of $272.73 per month as Contractual Alimony, the said payments to be limited to 132 installments, for which there shall be reasonable security. The Petitioner is to receive the rest and remainder of the Community Estate as his separate property. A more full and complete property agreement is to be filed herein which agreement is fully approved therein.

In rendering a summary judgment in favor of Sonya in this enforcement proceeding, the trial court stated: “[T]he Decree of Divorce between the Plaintiff and Defendant . . constitutes a binding contract . . and further is a final judgment not subject to attack and is entitled to full enforcement.” Reversing the judgment, the court of civil appeals held that paragraph 2 of the divorce decree did not specifically order the payment of contractual alimony, but instead “merely approved ” the parties’ agreement. The court stated that such “recitals” have been held not to be an award of the court. 576 S.W.2d at 670-71.

This holding conflicts with the opinions of this court in Francis v. Francis, 412 S.W.2d 29 (Tex.1967), and Ex Parte Jones, 163 Tex. 513, 358 S.W.2d 370 (1962). In the Francis case we upheld a trial court judgment which “merely approved” the parties’ contractual alimony agreement, and stated:

While Art. 4638 directs courts granting divorces to “order a division of the estate of the parties in such a way as the court shall deem just and right,” it is not the purpose of the statute to proscribe amicable division and settlement by the parties. And if as a part of their settlement the parties agree that the husband will make support payments to the wife after a divorce is granted, approval of the agreement by the court should not be held to invalidate it as alimony. Amicable settlement by the parties of their property rights should be encouraged, not discouraged. The agreement will then have whatever legal force the law of contracts will give to it. See Ex Parte Jones, 163 Tex. 513, 358 S.W.2d 370 (1962).

412 S.W.2d at 33 (emphasis added). Similarly, in the Jones case this court was called upon to interpret a community property settlement contained in a prior divorce decree. We stated: “This agreed judgment must be interpreted as if it were a contract between the parties and the interpretation thereof is governed by the laws relating to contracts, rather than laws relating to judgments.” 358 S.W.2d at 375; accord, Martinez v. Guajardo, 464 S.W.2d 944, 947 (Tex.Civ.App.—San Antonio 1971, no writ). Although rules relating to contract interpretation apply, an agreed judgment is accorded the same degree of finality and binding force as a final judgment rendered at the conclusion of an adversary proceeding. Pollard v. Steffens, 161 Tex. 594, 343 S.W.2d 234, 239 (1961); R. McDonald, Texas Civil Practice in District and County Courts § 17.22, at 109 (1971).

The court of civil appeals therefore erred in interpreting the contractual alimony agreement according to the law of judgments and holding it unenforceable because it did not reside in the mandatory or decre-tal portions of the divorce decree. Such agreement is nonetheless enforceable as part of the prior decree if it appears in the recitals and is approved by the court.

Pursuant to Rule 483, Texas Rules of Civil Procedure, the application for writ of error is granted, and without hearing oral argument, the judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.


author: GUITTARD, Chief Justice.

text:
    AMERICAN TRANSFER AND STORAGE COMPANY, Appellant, v. Raymond J. BROWN, Appellee.
    No. 19598.
    Court of Civil Appeals of Texas, Dallas.
    April 12, 1979.
    Rehearing Denied May 9, 1979.

      Duncan E. Boeckman, Golden, Potts, Boeckman & Wilson, Dallas, for appellant.
    Carl David Adams, Dallas, for appellee.
    Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.
   GUITTARD, Chief Justice.

This suit was brought under the Texas Deceptive Trade Practices Act, Tex.Bus. & Comm.Code §§ 17.42-17.50 (Vernon Supp. 1979) for damages to household goods being shipped from Irving, Texas, to Fairbanks, Alaska. The trial court rendered judgment against the packer, who also acted as agent of the carriers, for treble damages and an attorney’s fee. The principal question is whether the Texas Act is pre-empted by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 20(11), (1970), which concerns liability for goods shipped in interstate commerce.

We hold that the Carmack Amendment does not pre-empt the Texas Act with respect to liability for false, misleading, or deceptive acts and practices that occurred before the contract of carriage was made. For like reasons, we hold that a contractual limitation of liability does not apply. However, we conclude that the cause must be reversed and remanded for a new trial because the trial court erred in excluding evidence of the shipper’s acceptance of insurance benefits under coverage provided by the contract. We also hold that damages for mental anguish cannot be recovered for this kind of loss, and we give directions concerning special issues to be submitted on another trial.

1. Pre-emption of Deceptive Trade Practices Act by the Carmack Amendment

Defendant does not challenge the sufficiency of the evidence to support the jury’s findings of deceptive trade practices. Consequently, we must assume that plaintiff has established his cause of action for deceptive trade practices unless the Texas Deceptive Practices Act is inapplicable because of the interstate character of the shipment involved. Defendant’s principal contention is that the Act does not apply because this suit is an action for damages to freight shipped in interstate commerce within the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 20(11) (1970), which regulates such claims and excludes all recovery based on state statutes or common-law grounds.

Plaintiff asserts that his claim is not based on the contract of carriage or on any rule of carrier liability, under either statute or common law, but that it rests solely on the Texas Deceptive Trade Practices Act. He argues that the interstate character of the shipment does not exempt defendant from the penalties of the Texas law for false, misleading, and deceptive acts and practices.

This question has given us difficulty because the opinions of the Supreme Court of the United States on the question of federal pre-emption of state law, though numerous, provide no clear guidance. Each case turns on the peculiarities and special features of the regulatory scheme in question. City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 637, 638, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973).

Of course, if there is a direct conflict between federal and state law, the federal law controls under the Supremacy Clause in Article VI of the United States Constitution. Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971); Swift and Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Gibbons v. Ogden, 9 Wheat. 1, 22 U.S. 1, 6 L.Ed. 23 (1824); see, e. g., Note, The Preemption Doctrine: Shifting Perspectives on Federalism and the Burger Court, 75 Colum.L.Rev. 623 (1975). Likewise, state legislation is invalidated by a federal statute that either expressly or impliedly by its structure and purpose evinces an intention to occupy the field and exclude state regulation. Jones v. Rath Packing Company, 430 U.S. 519, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). The test is whether under the circumstances of the particular case the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971); Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1940).

Accordingly, we must examine the Car-mack Amendment and the decisions construing it to determine the purposes and objectives of Congress. The subject matter of the amendment is contracts for interstate transportation of property and the liability of carriers for breach of such contracts. The statute contains detailed provisions concerning the liability of initial and connecting carriers for losses in interstate shipments, issuance of bills of lading, contractual limitations of liability, and notice and filing of claims. This statute was construed authoritatively in the leading case of Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314 (1912), which held that the provision of this law permitting a carrier to fix its rates with respect to the agreed or declared value of the property renders inapplicable any local law forbidding limitation of liability to less than the full value. The Supreme Court poirited out that the purpose of the Carmack Amendment was to free interstate shipments from the diversity of legislative and judicial holdings that made it difficult for shippers and carriers to know the extent of the carrier’s responsibility for goods delivered to it for transportation from one state to another. The court stated:

That the legislation supersedes all the regulations and policies of a particular state upon the same subject results from its general character. It embraces the subject of the liability of the carrier under a bill of lading which he must issue, and limits his power to exempt himself by rule, regulation, or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject, and supersede all state regulation with reference to it. [226 U.S. at 505-506, 33 S.Ct. at 152],

Following Croninger, the Supreme Court held in Atchison, T. & S. F. Ry. v. Harold, 241 U.S. 371, 36 S.Ct. 665, 60 L.Ed. 1050 (1916), that the Carmack Amendment applies to liability for an error in a bill of lading even though Congress has not legislated specifically on that subject. The court said that the amendment “was an assertion of the power of Congress over the subject of interstate shipments, the duty to issue bills of lading, and the responsibilities thereunder, which, in the nature of same, excluded state action.” The court reaffirmed its position that the “prime object” of the amendment “was to bring about a uniform rule of responsibility as to interstate commerce and interstate commerce bills of lading.” This principle of uniformity of responsibility for shipments in inter-, state commerce has been held to exclude recovery of the attorneys’ fees provided by state law in an action for damages to an interstate shipment. Strickland Transport Co. v. American Distrib. Co., 198 F.2d 546, 547 (5th Cir. 1952); Southwestern Motor Transport Co. v. Valley Weathermakers, Inc., 427 S.W.2d 597 (Tex.1968).

Comprehensive though the Carmack Amendment may be in its regulation of contracts of carriage in interstate commerce and claims arising out of such contracts, we conclude that deceptive trade practices, except possibly to the limited extent of misrepresentations affecting the applicable rate, do not fall within the ambit of federal regulation. The uniformity sought by the Carmack Amendment, according to the authorities above mentioned, is uniformity in the requirements of a contract of carriage in interstate commerce and in the carrier’s liability for breach of its duties under such a contract. The Deceptive Trade Practices Act does not purport to regulate these matters and presents no obstacle to full accomplishment of uniformity in these respects. It applies to false, misleading, and deceptive acts or practices in general and makes no special provision for interstate shipments or other transactions in interstate commerce. We find nothing in the Carmack Amendment or in the decisions construing it suggesting that uniformity was sought with respect to legal liability for false, deceptive, or misleading acts or practices preliminary to the formation of the contract for interstate shipment. We conclude that protection of interstate shippers from such practices is left to the police powers of the several states.

We recognize that in this case damages for violation of the Deceptive Trade Practices Act may be measured by the same loss, at least in part, as damages for breach of the contract of carriage. This coincidence should not obscure the differences in the purposes of the two statutes, in the scope of activities they undertake to regulate, or in their respective grounds of liability. In these important respects, the two neither conflict nor overlap. Measurement of damages by the same loss does not present an obstacle to full accomplishment of the purpose of the federal legislation. For this purpose the treble damage penalty imposed by the Deceptive Trade Practices Act is no different from a fine or civil penalty determined on some other basis. Consequently, we find no basis to hold that the state’s regulation of deceptive trade practices relating to interstate shipments has been pre-empted by federal legislation.

Although this exact problem was not considered in any of the cases cited to us, our holding is consistent with the decisions of the Supreme Court of the United States concerning federal pre-emption. The most nearly analogous case we have found is Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960). There an ordinance regulating emission of smoke from boilers was held applicable to boilers of ships engaged in interstate commerce while within the city’s boundaries, even though such ships and their boilers had been licensed under federal law, inspected by federal authority, and certified by federal officials as safe for navigation. The Supreme Court held that there was no overlap between the federal inspection law, which was concerned- with protection against the perils of maritime navigation, and the city ordinance, which aimed to eliminate air pollution for protection of the health and welfare of the local community. Id. at 445, 80 S.Ct. 813. The court pointed out that state regulation based on the police power, which does not discriminate against interstate commerce or operate to disturb its required uniformity, was not an undue burden on interstate commerce. That decision may be compared with Douglas v. Seacoast Products, Inc., 431 U.S. 265, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977), which held that federal regulations licensing fishing vessels pre-empted a state licensing law imposing more restrictive requirements on vessels owned by non-residents than on those owned by local citizens, but in that case the court observed that reasonable and even-handed conservation measures stood unaffected by the decision.

Also, in Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973), a Florida statute imposing strict liability for damages incurred by the state or by private persons as a result of discharge of oil and other chemicals into its territorial waters was held not pre-empted by a federal statute authorizing federal regulations requiring maintenance of equipment to prevent oil spills by ships and terminal facilities and imposing on their owners liability without fault for clean-up costs incurred by the federal government as a result of such spills. Similarly, in Dickson v. Uhlmann Grain Co., 288 U.S. 188, 53 S.Ct. 362, 77 L.Ed. 691 (1933), the court held that the Federal Grain Futures Act, which imposed certain requirements for sales of grain for future delivery, did not supersede a Missouri statute prohibiting gambling on grain futures. Other decisions standing for the same principle are cited in the margin.

Defendant argues that if the Deceptive Trade Practices Act is applicable, all the plaintiff would have to do to avoid the federal law would be to prove a representation that the goods would not be damaged in shipment. Consequently, defendant insists, the limitation of liability provided by the Carmack Amendment would be nullified if the penalties of the Deceptive Trade Practices Act were permitted to apply.

We do not agree. We may concede for present purposes that the Carmack Amendment and its provision for limitation of liability applies to any case in which the wrongful conduct alleged would amount to a breach of the contract of carriage, whether the suit is brought in the form of an action on the contract or on some statutory or common-law ground. Nevertheless, in this ease, plaintiff’s action is not based on any conduct that could be considered a breach of the contract of carriage. It is based on false, misleading, and deceptive acts and practices of defendant’s agent that occurred before the parties entered into the contract. Plaintiff Raymond Brown alleged that he engaged the services of defendant American Transfer & Storage Company to move his household belongings and Chevrolet automobile to Fairbanks, Alaska; that plaintiff was induced to enter into the contract by the false, misleading and deceptive representations of defendant’s agents that defendant would provide a “door to door” service, including careful packing, storage, movement, delivery, and placement in defendant’s residence, and that certain types of containers and vaults would be used to assure safe delivery; and that as a result of such representations plaintiff was damaged in the amount of $23,200 for loss or damage to his household goods, $1,050 for repairs to his automobile, and $5,000 in mental anguish.

These allegations were amply supported by the evidence. Defendant was not itself an interstate carrier, but it served as an agent for interstate carriers and as a packer of goods for interstate shipment. In response to a telephone call from plaintiff, defendant’s agent, Joe Stanton, came to plaintiff’s home in Irving, surveyed its contents, and described the services that defendant offered. Stanton represented that the goods would be packed securely in wooden vaults or crates before plaintiff’s eyes in Irving, Texas, that the containers would not be opened or tampered with until delivered to plaintiff’s new home in Fairbanks, Alaska, that when they arrived there they would be unpacked and placed in the house at plaintiff’s direction, and that the automobile would be shipped separately. Relying on these representations, plaintiff entrusted his goods to defendant for shipment. The evidence shows that these representations misled plaintiff with respect to defendant’s actual method of operation. Defendant’s employees took the goods and packed them, as represented, but then, without plaintiff’s knowledge, removed the goods from the wooden containers and stacked the furniture and the cardboard boxes containing plaintiff’s other possessions in a single Sealand container, together with the automobile. This method, according to plaintiff’s witnesses, was inadequate for overseas shipment. When received in Fairbanks most of the goods were missing or damaged and the automobile needed repair. Moreover, the evidence shows that the practice of the terminal carrier, which delivered the goods in Fairbanks, was not to unpack the goods and place them as directed, but merely to set the furniture and cardboard containers in the house. Defendant did not deny these facts, but undertook to defend its practices as acceptable methods of transportation. In the light of this evidence, the jury was justified in finding that Stanton’s representations constituted deceptive trade practices and that plaintiff was adversely affected in that the inadequate packing of the goods caused a substantial portion of them to be lost, destroyed and damaged, that plaintiff and his wife were put to additional trouble in unpacking and arranging those that remained, and that they were without an automobile while theirs was being repaired. We hold that for the cause of action so established the applicable provisions of the Deceptive Trade Practices Act have not been preempted by the Carmack Amendment.

2. Limitation of Liability

Apart from the pre-emption question, defendant asserts that the court erred in not limiting plaintiff’s damages to thirty cents per pound of the weight of the goods shipped, as specified in the order for services signed by plaintiff and also in the bill of lading. It also complains that the court erroneously excluded those portions of the order and of the bill of lading which contain such limitations of liability. Plaintiff responds that the limitation of liability was properly excluded because it was void and unenforceable under section 17.42 of the Texas Deceptive Trade Practices Act, which provides that any waiver by a consumer of the provisions of the Act “is contrary to public policy and is unenforceable and void.”

We conclude that plaintiff’s contention in this respect is well taken insofar as the contractual limitation of liability is relied on as an absolute limitation of the damages. The limitation may be effective to limit liability under the contract, but, as already pointed out, this suit is not brought on the contract. It is rather an action under the Deceptive Trade Practices Act for damages from misrepresentation made before the contract was signed. Since we have already held that application of the Deceptive Trade Practices Act has not been preempted by the Carmack Amendment, we hold also that section 17.42 is effective to nullify any contractual limitation of liability insofar as this action is concerned. Nevertheless, we conclude that the court erred in excluding the contractual limitation insofar as it bears on the question of admissibility of the matter of insurance payments, to which we now turn our attention.

3. Insurance Coverage and Payment

Alternatively, defendant asserts that even if the Deceptive Trade Practices Act applies, the court erred in excluding from evidence the insurance certificate obtained by defendant to cover plaintiff’s shipment and in excluding evidence of the $11,009.22 payment received by plaintiff in settlement of his claim under that certificate. Defendant alleged in its answer that as a part of its agreement with plaintiff, defendant, as agent for the insurance company, issued a certificate of insurance covering loss or damage to plaintiff’s goods, that plaintiff had made a claim under this certificate and had received a payment of $10,000 for loss and damage to his household goods and personal effects and $1,009.22 for damages to his automobile. Evidence supporting these allegations was excluded by the court in response to plaintiff’s motion in limine, and defendant tendered the evidence in a bill of exception. The jury found that the damage to plaintiff’s household goods and furniture was $18,434 and that the cost of repair of his automobile was $1,059.22. The jury also found damage from mental anguish in the amount of $5,000. The trial court rendered judgment for three times the sum of these amounts, plus an attorney’s fee.

Plaintiff seeks to support the trial court’s exclusion of the insurance coverage and settlement by invoking the collateral source rule and arguing that the insurance payment is immaterial because defendant is not entitled to the benefit of any insurance coverage procured for plaintiff.

We conclude that the collateral source rule does not apply and that the issuance of the insurance policy and the payment under it were admissible to rebut the amount of damages claimed by plaintiff because the insurance was procured pursuant to the contract between the parties.

The theory behind the collateral source rule is that a wrongdoer should not have the benefit of insurance independently procured by the injured party, and to which the wrongdoer was not privy. Texas & P. Ry. v. Levi, 59 Tex. 674, 676 (1883); Graves v. Poe, 118 S.W.2d 969 (Tex.Civ.App.—El Paso 1938, writ dism’d); Perrott v. Shearer, 17 Mich. 48, 56 (1868). The rule is an exception to the general principle forbidding more than one recovery for the same loss. See Maxwell, The Collateral Source Rule in the American Law of Damages, 46 Minn.L.Rev. 669 (1962). That principle was firmly established by the Supreme Court of Texas in Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (1935) and was reaffirmed in T. L. James & Co. v. Statham, 558 S.W.2d 865, 868 (Tex.1977).

The general principle, rather than the collateral source rule, was applied by the supreme court in Publix Theatres Corp. v. Powell, 123 Tex. 304, 71 S.W.2d 237, 241 (1934). There a lease of a theater required the lessee to keep the premises insured. A fire occurred as a result of the negligence of a corporation affiliated with the lessee. The lessor collected the insurance proceeds and then sued the negligent party for the loss. The supreme court held that by providing the insurance, the lessee had satisfied the claim of the damaged party. The court distinguished cases applying the collateral source rule on the ground that in those cases the payment by the insurance company was the result of a contract to which the wrongdoer was not privy.

Here, likewise, the record shows that the insurance coverage in question was not procured independently by plaintiff, but was procured by defendant pursuant to the contract between the parties. The order for moving services signed by plaintiff provides as follows:

IN THE ABSENCE OF ANOTHER SEPARATE WRITTEN AGREEMENT AND IN CONSIDERATION OF THE RATES TO BE CHARGED FOR THE SERVICES TO BE PERFORMED, I AGREE THAT THE LIABILITY OF AMERICAN TRANSFER AND STORAGE CO. IS LIMITED TO THIRTY CENTS (.30$) PER POUND PER ARTICLE AND TO TWENTY-FIVE DOLLARS TOTAL CLAIM. I WILL ARRANGE ADDITIONAL INSURANCE IF DESIRED.

This same order provides for insurance on the goods in the amount of $26,100 at a premium of $522. The bill of lading and freight bill, also signed by plaintiff, and issued by defendant as agent for Columbia Export Packers, Inc., provides:

2. This carrier’s liability for loss or damage is limited to a maximum of 30<p per pound of the weight of each shipping package or unpacked article. Additional insurance is available to the shipper in the event he desires it.
3. Shipper declares that the entire shipment is valued at $— and hereby agrees to the foregoing contract, conditions and terms.

In accordance with these contracts, plaintiff paid to defendant the premium of $522 and defendant’s agent Stanton signed and delivered to plaintiff a “Transit-Pak Certificate” evidencing insurance underwritten by the Insurance Company of North America covering the full value of plaintiff’s property in the amount of $26,100. This certificate provides:

The Company shall be subrogated to the extent of their payment for losses insured hereunder to all the Insured’s rights of recovery against any person or organization, excepting the origin and destination freight forwarders and packers and their designated agents, who perform pick-up, packing delivery and unpacking services in connection with the movement of the shipment.

The substance of this transaction was that the insurance was obtained for the benefit of both parties. It is unlikely that plaintiff would have agreed to such a low valuation for his goods if their full value had not been insured against loss or damage in transit. It is also unlikely that defendant would have undertaken to pack and forward the goods at the rate specified if they had not been fully insured. As noted in our discussion of the pre-emption question, the rule is well established that a carrier may base its rates on an agreed valuation and may charge a higher rate based on a higher valuation. Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314 (1912). The nominal valuation specified in the order for moving services and the parties’ failure to fill in the valuation amount on the bill of lading can be understood only on the assumption that both parties contemplated that plaintiff would look to the insurance company rather than defendant or Columbia Packers to make good any additional loss. The exclusion of subrogation rights against defendant and Columbia Packers is another indication that the insurance was procured for the benefit of those parties as well as plaintiff. In effect, plaintiff paid the insurance company, rather than the defendant, to assume the risk of loss or damage in transit in excess of the nominal valuation declared in the contract. This situation is not within the rationale of the collateral source rule.

We see no reason why the principle forbidding more than one recovery for the same loss should not apply to an action brought under the Deceptive Trade Practices Act as well as to any other. Notwithstanding our holding that plaintiff’s cause of action is separate and distinct from an action on the contract and that the contractual limitation of liability Has no application, the fact remains that the actual loss complained of in this action is the same loss for which the parties have, by their contract, provided insurance. In accordance with that contract, plaintiff has already been compensated for that loss to the extent of $11,009.22 by the insurance company, which is not entitled to subrogation. To deny application of the general principle here would permit plaintiff to collect the full amount of his loss from the insurance company and then have judgment for three times the same damages from defendant, thus recovering his damages fourfold. Consequently, we hold that the trial court erred in excluding from evidence the provisions of the contract concerning insurance, the insurance certificate, and the insurance payment received. Evidence of the premium paid by plaintiff was also admissible.

This holding does not ignore the no-waiver provision in section 17.42 of the Act. We give effect to that provision by permitting recovery of three times plaintiff’s actual loss in excess of the insurance payment, notwithstanding the contractual limitation to a small or nominal amount. The contractual limitation is relevant only to show that the insurance coverage was an integral part of the entire contract between the parties and, consequently, not within the collateral source rule.

We note that defendant offered evidence of plaintiff’s acceptance of the insurance payment on the additional ground that his claim and acceptance of a smaller amount than that asserted as damages in the present case was an admission that the amount of damages to his goods was not as great as that now claimed. Although defendant has not briefed this point on appeal, there is authority supporting this theory of admissibility. Moore v. Dallas Ry. & T. Co., 238 S.W.2d 741 (Tex.Civ.App.—Amarillo 1951, writ dism’d). In this connection plaintiff argues that evidence of the insurance payment was properly excluded as a compromise of a doubtful claim, citing Allen v. Avery, 537 S.W.2d 789 (Tex.Civ. App.—Texarkana 1976, writ ref’d n. r. e.). The bill of exception shows, however, that the claim was not contested and that the insurance company paid the amount claimed in full. Consequently, evidence of the payment was not properly excluded on that ground. Moreover, the principle forbidding more than one recovery for the same loss applies even though the earlier payment was the result of a compromise. See Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (1935).

Defendant suggests that we should reform the judgment by reducing it to the proper amount. We cannot, however, render judgment on the basis of evidence that was excluded by the trial court and appears in the record only in defendant’s bill of exceptions. Consequently, we must remand the case for a proper determination of the damages. First Nat’l Bank v. Fite, 131 Tex. 523, 115 S.W.2d 1105, 1110 (1938); Nast v. San Antonio, U. & G. Ry., 261 S.W. 1011, 1013 (Tex.Com.App.1924, holding approved); Baldwin v. Willis, 253 S.W.2d 287, 294 (Tex.Civ.App.—Beaumont 1952, writ ref’d n. r. e.). Since the damages are unliq-uidated and the liability issues are contested, we must remand the case for an entire new trial. Tex.R.Civ.P. 434. Accordingly, we turn to other points in appellant’s brief and consider questions that probably will arise again in the trial court.

4. Form of Liability Issues

Defendant complains of the form of the issues submitted concerning the alleged deceptive trade practices. It asserts that the jury’s answers to these issues will not support a judgment because they are too broad, are not ultimate fact issues, and do not submit the disputed issues of fact because the jury could have answered them affirmatively from the undisputed evidence.

Plaintiff contends that defendant failed to preserve the points by proper objections in the trial court, but we need not consider the sufficiency of the objections, since the case must be reversed on grounds already stated. We consider these points only as they bear on the issues to be submitted on another trial.

The issues complained of and the jury’s answers to them are as follows:

SPECIAL ISSUE NO. 1
DO YOU FIND from a preponderance of the evidence that defendant, American Transfer & Storage Company, represented to Plaintiff, Raymond Brown, that the moving services of American Transfer & Storage Company would include benefits and characteristics which they did not include?
ANSWER: We do.
SPECIAL ISSUE NO. 2
DO YOU FIND from a preponderance of the evidence that the representation or representations inquired about in Special Issue No. 1 was a producing cause of any damage to Raymond Brown?
ANSWER: We do.
SPECIAL ISSUE NO. 5
DO YOU FIND from a preponderance of the evidence that Defendant, American Transfer & Storage Company, represented to Plaintiff, Raymond Brown, that the moving services of American Transfer & Storage Company were of a particular standard, quality or grade, when in fact they were not?
ANSWER: We do.
SPECIAL ISSUE NO. 6
DO YOU FIND from a preponderance of the evidence that the representation or representations inquired about in Special Issue No. 5 was a producing cause of any damage to Raymond Brown?
ANSWER: We do.

We agree that these issues are improper. As defendant points out, it is impossible to determine from the jury’s answers which of the deceptive trade practices alleged occurred or which caused the damages found by the jury. Plaintiff alleged that he was induced to enter into the contract of transportation by the representation of defendant’s agent Stanton that the contract for moving would be a “door-to-door” service, including careful packing, storage, movement, delivery, unpacking, and placement in plaintiff’s home in Fairbanks of all his furniture and personal belongings. Plaintiff also alleged that Stanton represented that there would be no hidden or unnecessary charges, that certain types of containers and vaults would be used to assure safe delivery, and that defendant was to be the principal mover in contracting and completing the move. Plaintiff further alleged that these representations as to characteristics, ingredients, benefits, or qualify of services to be rendered by defendant were false, misleading, and deceptive to plaintiff and damaged plaintiff in the amount of $23,200 as actual damages to his household goods, $1,050 to his automobile, $700 for loss of use of his automobile, and $5,000 for mental anguish.

Defendant points out that these issues do not establish that the deceptive trade practices found by the jury actually caused the loss of his goods. He points out that it was undisputed that plaintiff’s goods were not unpacked and placed in their home in Fairbanks, as Stanton represented they would be, and that if the jury had found that this was the only false, misleading, and deceptive representation made by Stanton, the jury would still have had to answer the issues as it did, namely, that defendant represented that its moving services would include benefits and characteristics which they did not include and were of a particular standard, quality or grade when in fact they were not, and that both of these misrepresentations were a producing cause of “damage to Raymond Brown.”

Defendant further contends that the proper method of submitting the issues is that prescribed by the supreme court in Spradling v. Williams, 566 S.W.2d 561, 564 (Tex.1978). As we read that opinion, it holds that in a deceptive trade practice case it is necessary to submit an issue inquiring whether the particular act or practice alleged occurred. Spradling further states that if the act or practice so submitted falls within any of the twenty subdivisions of section 17.46(b), then an affirmative finding establishes the deceptive trade practice, but that if the act or practice so submitted does not fall within any of those subdivisions, another issue must be submitted inquiring whether the particular act or practice alleged is a deceptive trade practice, so as to bring it within subdivision (a) of section 17.46.

No such submission was made in the present case, since none of the acts or practices alleged in the petition were submitted to the jury. The jury was simply asked in the first issue whether defendant represented to plaintiff that defendant’s services “would include benefits and characteristics which they did not include,” without confining the jury’s consideration to any particular representations. Likewise, the fifth issue inquired whether defendant represented to plaintiff that its services “were of a particular standard or grade when in fact they were not.” Thus, the court, in effect, asked legal questions as to whether defendant violated subdivisions (5) and (7) of section 17.46(b) rather than making the factual inquiry of whether the alleged representations were made. It is the function of the court, rather than the jury, to apply the law to the facts and determine whether the representation found falls within any of the subdivisions of section 17.46(b). It is still improper, as it always has been, to submit to the jury a legal question without appropriate instructions. Knutson v. Ripson, 163 Tex. 312, 354 S.W.2d 575, 576 (1962); Kunkel v. Poe Land & Development Co., 393 S.W.2d 191, 194 (Tex.Civ.App.—Corpus Christi 1965, no writ); Foerster v. Louis Peoples, 362 S.W.2d 918 (Tex.Civ.App.—Amarillo 1962, no writ).

Conceivably, the court could have phrased the issues as it did if it had also given appropriate accompanying instructions with respect to the representations raised by the pleadings and the evidence. See Scott v. Atchison, T. & S.F. Ry., 572 S.W.2d 273, 278 (Tex.1978); Scott v. Ingle Bros. Pacific, Inc., 489 S.W.2d 554, 557 (Tex. 1972). No such instructions were given, however, and, in any case, the better practice is to follow the procedure approved in Spradling, that is, to submit to the jury issues concerning the particular act or practice alleged to have been false, misleading, or deceptive. We direct that this method of submission be used on another trial and also that the issues be so phrased as to limit the jury’s consideration of damages to those resulting from the acts or practices found to have been false, misleading, or deceptive. Woods v. Littleton, 554 S.W.2d 662, 671-72 (Tex.1977).

5. Property Damage

Defendant’s principal complaint concerning the damage issue is that it did not inquire as to the damages to plaintiff’s household goods and furniture at the time and place of the loss. The issue inquires the amount of money that “would reasonably compensate Raymond Brown for the damages, if any, to his household goods and furniture.” An instruction accompanying this issue states that the measure of damages is “the cost to replace such household goods or furniture.”

This point is not well taken in view of the special measure of damages applicable to loss of household goods and personal effects. The proper measure is not their market value as second-hand goods at the time and place of the loss, but their actual value to the owner in the condition in which they were at the time, excluding any fanciful or sentimental consideration. Crisp v. National Ins. Co., 369 S.W.2d 326, 328 (Tex.1965); American Transfer & Storage Co. v. Reichley, 560 S.W.2d 196, 198 (Tex.Civ.App.—Amarillo 1978, writ ref’d n. r. e.). If the value of the goods to the owner is proved, and there is no evidence that to him they have a value at one place different from what they possessed at another, failure of the issue to limit the value to a particular time and place is not reversible error. International & G. N. Ry. v. Nicholson, 61 Tex. 550, 553 (1884).

The better practice, in our opinion, is to submit an issue containing by its terms the proper measure of damages rather than to submit an issue inquiring generally the amount of compensation that would be reasonable, even if such a general issue is accompanied by an appropriate instruction. Consequently, we direct that on another trial the court submit an issue, in accordance with the Crisp opinion, inquiring the reduction in value to plaintiff of his household goods and furniture suffered by plaintiff as a result of his reliance on the deceptive trade practices, if any, found in answer to any of the preceding issues, excluding any fanciful or sentimental value.

In view of our remand for a new trial on other issues, we need not consider whether the evidence is sufficient to support the finding of damages.

6. Mental Anguish

Finally, defendant complains of the submission of an issue on mental anguish on the ground that there is no legal basis to support such a recovery. Defendant relies on cases holding that damages for mental anguish are recoverable only when the mental anguish is suffered in connection with actual physical harm or where defendant has committed a direct and intentional invasion of plaintiff’s interest in personal security and peace of mind. Duty v. General Finance Co., 154 Tex. 16, 273 S.W.2d 64, 65 (1954); Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.W.2d 81, 82 (1953); Phillips v. Latham, 523 S.W.2d 19, 27 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.).

Plaintiff does not challenge the principles stated in these cases, but insists that they are not applicable to actions brought under the Deceptive Trade Practices Act. He points out that section 17.44 requires that the Act be “liberally construed and applied to promote its underlying purpose, which is to protect consumer against false, misleading and deceptive business practices, unreasonable acts, and breaches of warranty and to provide efficient and economical procedures to secure such protection,” and that section 17.50 gives a cause of action to a consumer “if he has been adversely affected” by such acts or practices. Consequently, plaintiff argues, the Act has the effect of creating a cause of action for mental anguish, regardless of whether the wrong complained of was a willful wrong or accompanied by other physical harm. He cites Maxwell, Public and Private Rights and Remedies under the Deceptive Trade Practices-Consumer Protection Act, 8 St. Mary’s Law J. 617 (1977), and relies also on Woods v. Littleton, 554 S.W.2d 662 (Tex.1977).

This question was recently decided adversely to plaintiff’s contention in Dennis Weaver Chevrolet, Inc. v. Chadwick, 575 S.W.2d 619 (Tex.Civ.App.—Beaumont 1978, writ ref’d n.r.e.). In a scholarly opinion, Justice Keith points out that the Deceptive Trade Practices Act has not adopted the new tort of mental anguish, but, on the contrary, has left the damages recoverable under section 17.50 to be determined according to common-law rules. We agree with Justice Keith. The Act makes no mention of mental anguish. Section 17.50(a) provides that a consumer “may maintain an action if he has been adversely affected,” and section 17.50(b) provides that in such a suit he may obtain “three times the actual damages.” There is no definition of “actual damages,” and no indication that this term extends to damages for mental anguish of the sort otherwise not recoverable unless for a willful tort or for an injury resulting in physical harm to the person. Consequently, our only guide to the meaning of the term “actual damages” is the settled rules of the common law.

Of course, the Act greatly enlarges the grounds on which damages are recoverable, and provides for trebling of actual damages, but, as we construe it, does not extend the scope of actual damages. We are unwilling to extend it by judicial fiat. The demands on the judicial system for reparation of substantial monetary losses are so great that only in exceptional circumstances should courts be required to take account of emotional distress unaccompanied by physical injury. If such damages are recoverable, then whenever a property loss is claimed, the plaintiff can always testify concerning his subjective reactions and thus inject an element of damage that can rarely be rebutted, has no monetary measure, and is subject to no limits but the sympathy of the jury and the conscience of a reviewing court. See Harned v. E—Z Finance Co., 151 Tex. 641, 254 S.W.2d 81, 86 (1953).

We recognize that the intention of the Act is to allow a greater recovery of damages for deceptive trade practices than permitted by common law, but, in our view, that intention was fully expressed in the provision for trebling the actual damages proved under common-law rules applicable to the type of loss shown by the evidence. We do not think the Act can be fairly read as providing that where, as in this case, the actual loss sustained was to property, the consumer may have an additional recovery for his mental anguish caused by that loss, and that this recovery, as well as his recovery for the actual loss, must then be trebled to impose a penalty substantially in excess of three times the property loss sustained. Consequently, we hold that the issue concerning mental anguish was improperly submitted to the jury and should not be submitted at another trial.

We also agree with Justice Keith’s view that this question was not before the Supreme Court in Wood's v. Littleton, 554 S.W.2d 662 (Tex.1977). Plaintiff does not contend that the question was expressly decided in Woods, but argues that Woods controls because it assumes that mental anguish is a recoverable item of damages under the Act and remands the case for a proper determination of such damages. As the opinion of the court of civil appeals in that case shows, the objection to the mental anguish issue was that the issue did not limit the damage to that which the defendant’s acts produced or proximately caused. The court of civil appeals sustained this objection and remanded the case on that ground, expressly stating that it did not reach the question of recovery of damages for mental anguish. Littleton v. Woods, 538 S.W.2d 800, 802 (Tex.Civ.App.—Texarkana 1976). That judgment was affirmed by the supreme court, which expressly approved the holding that the mental anguish issue was defective. Woods v. Littleton, 554 S.W.2d 662, 672 (Tex.1977). The supreme court’s main concerns were whether the Act applied to a transaction that occurred before its effective date and whether its provision for treble damages was mandatory. The question of whether mental anguish is recoverable under the Act, if not otherwise recoverable by law, was not raised, so far as the opinion shows. Consequently, no expression of the court’s view on this question was required, or even appropriate, and the court expressed no such view, even by way of obiter dictum.

Although our duty is to apply the law as decided and declared by the supreme court, we are not bound by assumptions and implications in its opinions. Justice in the particular case, as well as rational and orderly development of the law, demands that the doctrine of stare decisis be limited to questions raised and decided on full consideration. Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124 (1913); State v. School Trustees of Shelby County, 150 Tex. 238, 239 S.W.2d 777 (1951); State v. J. M. Huber Corp., 193 S.W.2d 882 (Tex.Civ.App.—Austin 1946), affirmed, 145 Tex. 517, 199 S.W.2d 501 (1947). Otherwise, application of precedents to cases without such full consideration would inevitably result in anomaly and injustice. Consequently, we consider ourselves free in this ease to construe the Act in question in. accordance with our own determination of the intention of the legislature as expressed in the Act and in the light of pre-existing law.

Because of the error of the court in excluding evidence of the insurance coverage and insurance payment, the judgment of the trial court is reversed and the cause is remanded for another trial in accordance with the directions in this opinion.

Reversed and remanded.

      . Another federal statute forbids misstatement of weight or classification of freight for the purpose of obtaining or allowing transportation at less than the regular rate. 49 U.S.C. § 10 (1970).

      . Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 136-37, 94 S.Ct. 383, 38 L.Ed.2d 348 (1973) (federal act regulating stock exchanges did not preempt state legislation concerning rights of brokers’ employees); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 145, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963) (federal regulations establishing minimum standards for marketing of avocadoes did not displace California regulations concerning oil content of the same products); Colorado Anti-Discrimination Comm'n v. Continental Air Lines, 372 U.S. 714, 721-22, 83 S.Ct. 1022, 10 L.Ed.2d 84 (1963) (federal anti-discrimination laws did not displace Colorado statute forbidding racial discrimination in hiring airline employees); California v. Zook, 336 U.S. 725, 732, 69 S.Ct. 841, 93 L.Ed. 1005 (1949) (federal regulation of travel bureaus did not preempt consistent state regulation of same subject); Rice v. Board of Trade, 331 U.S. 247, 253, 67 S.Ct. 1160, 91 L.Ed. 1468 (1947) (Federal Commodity Exchange Act did not pre-empt consistent state regulation of commodity exchanges); and see generally, Note, The Preemption Doctrine: Shifting Perspectives on Federalism and the Burger Court, 75 Colum.L.Rev. 623 (1975).


text:
    NATIONAL VAN LINES, INC., Appellant, v. J. D. LIFSHEN, Appellee.
    No. 19660.
    Court of Civil Appeals of Texas, Dallas.
    April 12, 1979.

      A. Paul Clark, III, Eggers & Wylie, Dallas, for appellant.
    Carl David Adams, Dallas, for appellee.
    Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.
   GUITTARD, Chief Justice.

In this appeal from a default judgment, defendant asserts that the trial court erred in overruling its motion for new trial and also complains that the evidence fails to support recovery for damages for mental anguish and an attorney’s fee. We hold that the court erred in overruling the motion because it was sufficient to show that defendant’s failure to answer was not the result of conscious indifference. We hold also that the court erred in allowing recovery of damages for mental anguish and for an attorney’s fee.

The petition alleges that plaintiff contacted defendant’s agent in Milwaukee, Wisconsin, concerning moving his household goods to Dallas, Texas, that defendant represented that the moving service would in-elude above average security and safety in transporting and unloading plaintiff’s possessions, and that defendant made other representations concerning the time necessary to complete the move. The petition further alleges that such representations were false, misleading, and deceptive because numerous items were damaged and some lost and also because the move was not completed until twenty days after the date represented. By way of damages, the petition alleges that plaintiff was adversely affected by such representations and was damaged to the extent of $785 in lost or damaged property, $716 for delay in delivery of his goods, and $1,000 for mental anguish suffered by plaintiff and his family. Plaintiff prayed for actual damages of $2,401, which he alleged should be trebled under the Deceptive Trade Practice Act, Tex.Bus. & CommUode Ann. § 17.50(b)(1), and for an attorney’s fee of $750.

Defendant failed to file an answer and the court rendered judgment by default against defendant for $6,205.14, together with an attorney’s fee of $750. Defendant filed a timely motion for new trial, which the court overruled.

In its first point, defendant contends that the trial court erred in overruling his motion for new trial because the motion established that his failure to answer was not intentional or the result of conscious indifference, but was due to a mistake, and set up a meritorious defense. Plaintiff does not challenge the sufficiency of the motion to allege grounds sufficient to excuse the failure to answer, but asserts that the affidavit of plaintiff’s attorney filed in response to the motion raises a fact issue as to whether defendant’s failure to answer was the result of conscious indifference. Plaintiff contends that since the motion was controverted in this respect, defendant had the burden under Dallas Heating Co. v. Pardee, 561 S.W.2d 16 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.) to offer evidence in support of the allegations in his motion, but that defendant did not carry this burden because it offered no evidence, merely standing on the allegations in the affidavit of its corporate counsel filed with the motion.

After considéring both the affidavit filed in support of the motion and plaintiff’s controverting affidavit, we conclude that defendant’s allegation that its failure to answer was the result of a mistake rather than conscious indifference was not effectively controverted. The affidavit of defendant’s corporate counsel states that on or about November 7, 1977, after service of citation, the affiant talked with the attorney for plaintiff, who agreed to extend the time for answer until December 1 and to send an itemized list detailing plaintiff’s claims, as required by a regulation of the Interstate Commerce Commission, before settlement of the claim could be tendered. The affidavit further states that on November 17 the affiant’s secretary failed to report for work and was absent for an extended period; that because of her absence, the affiant’s normal procedure for receiving mail and placing mail demanding action in the proper hands fell into disarray; that affiant had no further knowledge of the case until December 8, when he received in the mail a copy of a default judgment; that on that day his temporary office helper discovered among the piles of unfiled correspondence a letter from plaintiff’s counsel dated November 15; and that the affiant then retained an attorney in Dallas to file a motion for new trial.

The affidavit of plaintiff’s attorney filed in response to the motion for new trial states that on or about November 10 he spoke to defendant’s corporate counsel by long distance and agreed to extend the answer date until December 1 to accommodate settlement negotiations, that on November 15 he wrote corporate counsel a letter containing an offer of settlement and stating that if the offer was not acceptable and no answer was filed by December 1, a default judgment would be taken; but that he received no further communication from defendant before the default judgment was taken on December 2.

We see nothing inconsistent in the two affidavits. All the material facts stated in plaintiff’s opposing affidavit are contained in the affidavit of defendant’s corporate counsel, including the conversation on or about November 7 or November 10, when plaintiff’s counsel agreed to extend the time for answer only until December 1. Plaintiff’s counsel does not deny his agreement to send an itemized list detailing plaintiff’s claim, nor does he state any fact to support an inference that defendant’s failure to answer was the result of conscious indifference. Consequently, we hold that defendant had no burden at the hearing on the motion for new trial to offer evidence on that question.

Defendant’s remaining points have to do with its alleged meritorious defenses. Plaintiff concedes that under Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966), defendant was not required to establish his defenses by evidence, but only to “set up” such defenses in a sworn motion or affidavit.

Defendant’s second point asserts that the trial court erred in awarding treble damages and an attorney’s fee under the Texas Deceptive Trade Practices Act because recovery of damages to goods moving interstate is controlled by the Interstate Commerce Act, 49 U.S.C. § 20(11) (1970). We overrule this point because we hold that insofar as this case involves a claim for false, misleading, and deceptive acts or practices which occurred before the parties entered into the contract of carriage, as distinguished from an action for breach of duties assumed in the contract of carriage, it is not pre-empted by the Interstate Commerce Act. We have recently had occasion to review this question in more detail in American Transfer & Storage Co. v. Brown, 584 S.W.2d 284 (Tex.Civ.App.—Dallas, 1979). Consequently, appellant’s second point is overruled.

In its third point defendant asserts that the trial court erred in awarding damages for mental anguish in that there is insufficient evidence to show that the mental anguish suffered resulted from a willful trespass accompanied by actual damage to the property. Plaintiff replies that defendant has no standing to raise this question because it failed to assign as error any of the trial court’s findings of fact, including the court’s finding that plaintiff suffered both property damage and mental anguish as a result of defendant’s representations.

We conclude that plaintiff’s third point is sufficient to raise the argument that mental suffering is not a proper element of actual damages unless a willful tort is established. Although defendant did not object to the trial court’s finding of damages, defendant did include in its allegations of meritorious defense an averment “that the claim for mental anguish is without grounds and is not obtainable in this cause of action.”

This question, also, was raised in American Transfer & Storage Co. v. Brown, supra, and we held, following Dennis Weaver Chevrolet, Inc. v. Chadwick, 575 S.W.2d 619 (Tex.Civ.App.—Beaumont 1978, writ ref’d n.r.e.), that damages of mental suffering cannot be recovered under the Deceptive Trade Practices Act unless the wrongful action that caused the suffering was willful. No such willful wrong is alleged here. Consequently, defendant’s third point is sustained.

Defendant’s fourth point asserts that the trial court erred in awarding an attorney’s fee because no evidence was offered to show the reasonableness of the award. Plaintiff concedes that no evidence of reasonableness was offered, but contends that defendant has no standing to raise the point because it did not assign as error the trial court’s finding that a reasonable attorney’s fee for plaintiff was $750. We hold that although defendant does not specifically refer to this finding in its brief, this point and the argument under it can reasonably be construed as an attack on the finding. Since defendant admits that no evidence was offered at the default hearing to establish the reasonableness of this amount, this point is sustained.

Although we might sever the attorney’s fee issue and remand the cause for a new trial on that issue alone under Woods Exploration & Prod. Co. v. Arkla Equipment Co., 528 S.W.2d 568, 571 (Tex.1975), if the judgment were otherwise free from error, we cannot sever the damage issue because the damages are unliquidated. Tex.R. Civ.P. 434. Since the damages awarded include an allowance for mental anguish, which we hold not to be recoverable, and the trial court made no separate finding on the other damages proved, ground for a new trial is established, but it may be ordered only if defendant is willing to pay plaintiff’s expenses resulting from the default. Accordingly, this cause is reversed and remanded to the trial court with instructions to determine the reasonable expenses incurred by plaintiff as a result of defendant’s failure to answer, not including the expenses resulting from this appeal, and to grant defendant’s motion for new trial on condition that defendant pay such expenses, but to overrule such motion if defendant fails to pay such expenses by the time specified by the court. Dallas Heating Co. v. Pardee, 561 S.W.2d 16, 22 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.).

Reversed and remanded with instructions.

      . Plaintiff suggests under his first point that he had another meritorious defense in that the case is not governed by the Texas Deceptive Trade Practices Act, but by the Wisconsin Consumer Act, which does not provide for treble damages and attorney’s fees. The record, however, fails to show that either the applicability or the provisions of the Wisconsin Act were called to the attention of the trial court. In the absence of evidence of the provision of the Wisconsin Consumer Act or a motion to take judicial notice under rule 184a of the Texas Rules of Civil Procedure, the trial court was required to presume that the law of Wisconsin was the same as the law of Texas. Gevinson v. Manhattan Construction Co. of Okl., 449 S.W.2d 458, 465 (Tex.1969); Milner v. Schaefer, 211 S.W.2d 600, 603 (Tex.Civ.App.—San Antonio 1948, writ ref'd).


author: RAY, Justice.

text:
    HENRY S. MILLER COMPANY, Trustee, et al., Appellants, v. Harold WOOD et al. Appellees.
    No. 8643.
    Court of Civil Appeals of Texas, Texarkana.
    April 24, 1979.
    Rehearing Denied June 26, 1979.
    Michael R. Cooper, Cooper, Hayner, Miller, Long & Owen, Dallas, Leo A. Kissner, Leo A. Kissner & Associates, Houston, for appellants.
    Edmund R. Wood, Chancellor & Wood, Roger D. Bush, Dallas, for appellees.
   RAY, Justice.

This is a suit to recover sums paid for delinquent taxes. Harold E. Wood and wife, Ruth K. Wood, and Warren B. Wood and wife, Ruth Ann Wood, (Wood), appel-lees (plaintiffs), brought suit against Henry S. Miller Company, Trustee (Miller Company), seeking recovery of certain ad valorem taxes which Wood had paid to various taxing agencies in Fort Bend County. Miller Company sought indemnification in its action against Dr. Bernard Waidhofer, Dr. Matthew D. Burnett, Dr. Ronald R. Nova-sad, Dr. Bill J. McDougal and Frederick James Gaido, Jr., a joint venture, for whom Miller Company had purchased the property from Wood. The trial court awarded Wood $4,460.00, plus interest, and costs against Miller Company and awarded indemnification in favor of Miller Company against the members of the joint venture. Wood had paid the ad valorem taxes after foreclosing under four deeds of trust upon the real property which had been given as security for the purchase price of the land by Miller Company for the joint venture. At the foreclosure sale, Wood purchased the land, paid the taxes which were later found to be delinquent, and then instituted suit for reimbursement of the moneys paid to the taxing authority. The case was tried to the court without the aid of a jury upon stipulated facts.

Miller Company and the members of the joint venture have perfected their appeal and submit three points of error for our consideration.

Appellants assert that the trial court erred in holding Miller Company and the members of the joint venture personally liable for the delinquent ad valorem taxes paid by Wood because the deeds of trust and notes expressly stated that appellants would have no personal liability in the event of default; that the amount expended for ad valorem taxes by mortgagees, Wood, became a part of the lien upon the land and no right to a personal judgment exists against the mortgagors; and, that Wood was not entitled to a right of subro-gation in an in personam action for ad valorem tax payments because such right is limited to an in rem action only.

When Miller Company purchased the land from Wood, it executed notes and deeds of trust which respectively contained the following clauses:

“The maker of this note shall have no personal liability for the payment of this note, and in the event of default, the holder hereof shall have the mortgaged property alone as security for the payment of this note.”
“Anything herein to the contrary notwithstanding, the undersigned shall have no personal liability for the payment of the note secured hereby, and in the event of default, the holder of said note shall have the mortgaged property alone as security for the payment of said note

Because of the non-payment of the notes, Wood accelerated and matured the notes on February 3, 1976, subsequently foreclosing under the deeds of trust and purchasing the property at the foreclosure sale. During 1975, Miller Company had failed to pay the school and state and county taxes.

Appellees’ suit against Miller Company is based on a covenant in the deeds of trust which provides, in part, the following:

“THE UNDERSIGNED FURTHER COVENANT with said Trustee that it will at all times, during the continuance of this trust, . . . pay, before the same shall become delinquent, all taxes and assessments that may be levied or assessed against said premises or any part thereof. And it is especially agreed that if the undersigned shall fail ... to pay such taxes, then the said . taxes may be paid by the legal holder of said note, and sums so expended shall be a demand obligation and become part of the debt hereby secured, and shall draw interest . or at the option of the holder of the debt secured hereby, the entire principal indebtedness may be declared due, and be collected in any manner provided in this instrument, or provided by law.”

The case was presented on stipulated facts, but not strictly in compliance with the rule on an agreed case as provided by Tex.R.Civ.P. 263. Where, however, the parties stipulate all the facts of an action, though not literally in compliance with the rule, the stipulation may be treated as a submission upon an agreed statement. 4 McDonald’s, Texas Civil Practice, Sec. 16.03, p. 2 (1971); cf. Parsons v. Watley, 492 S.W.2d 61 (Tex.Civ.App. Eastland 1973, no writ), where the stipulations did not purport to contain all the facts and were not treated as an agreed statement by the court. If a case is submitted on an agreed statement of facts, the trial court and the reviewing court are limited to the agreed facts and cannot make any findings of fact not conforming to the agreed facts. Jay v. Devers, 563 S.W.2d 880, 881 (Tex.Civ.App. Eastland 1978, no writ). The trial judge, however, made findings that were in conformity with the stipulated facts.

SUBROGATION

A mortgagee who pays taxes in order to protect his interests in the mortgaged property is entitled to be subrogated to the lien created by the tax assessment and to be reimbursed for the amount so paid, but will only be able to enforce his tax lien as a part of the mortgage debt. Stone v. Tilley, 100 Tex. 487, 101 S.W. 201 (1907); The Praetorians v. State, 53 S.W.2d 334 (Tex.Civ.App. Waco 1932, writ ref’d); Wood v. Scott, 48 S.W.2d 1024 (Tex.Civ.App. Waco 1932, writ ref’d); 53 Tex.Jur.2d Subrogation, Sec. 39 (1964).

In Stone v. Tilley, supra, J. E. Stone had executed a deed of trust to N. J. S. Lacy upon a piece of property in the City of Waco. The city subsequently foreclosed upon the property for delinquent taxes and, in order to protect his mortgage, Lacy paid off the judgment. Lacy then foreclosed under the deed of trust and sold the property for $2,000.00. He then sued out an execution under his tax judgment which he had purchased from the City of Waco, against the mortgagors, the Stones, to recover $365.41 paid to discharge the tax judgment in favor of the city. The district court and the court of civil appeals both held that Lacy had a cause of action against the Stones based on subrogation. The Supreme Court reversed, holding that Lacy could only enforce his claim as part of the mortgage debt and had no right of action against the Stones personally. The court stated:

“. . . Holding a mortgage upon the land, Lacy had the right to discharge the taxes in order to protect his mortgage. He acquired whatever right would accrue to a mortgagee from such payment and no more, which by foreclosure of the mortgage was to enforce the collection of the sum paid against the land. . the mortgagee only acquires the right to enforce the taxes so discharged as a part of the mortgage debt, and it must be enforced at the same time that the mortgage is foreclosed for the debt secured thereby. Lacy acquired no right of action against the plaintiffs in error, and could not maintain a suit against them to reimburse himself, for the taxes paid in this case. . . . ”

What Lacy was required to pay for the protection of his mortgage did not constitute a separate and independent lien upon the land. It became a lien only in connection with and because of the mortgage, and could not exist independent of it. When Lacy foreclosed his mortgage under the power of sale contained in it, it was necessary for him to include the amount he had paid for taxes on the land, if he expected to collect that sum, for the only right that he had arose out of his mortgage, and when by the foreclosure proceeding, he satisfied that instrument, his right and claim against the Stones was likewise satisfied.

To the same effect was the ruling in The Praetorians v. State, supra. The Praetori-ans had foreclosed their deed of trust lien against Buell Lumber and Manufacturing Company and purchased the property in satisfaction of the debt at the foreclosure sale. The state had assessed taxes which the lumber company had failed to pay. The state sought foreclosure under its tax lien and The Praetorians sought indemnification from the lumber company if the tax lien was foreclosed in favor of the state. The trial court foreclosed the tax lien on the property in favor of the state, but refused judgment in favor of The Praetorians against the lumber company. The Praetori-ans appealed. The court of civil appeals held that had The Praetorians paid the taxes prior to their foreclosure of the deed of trust it would not have been entitled to a personal judgment against the lumber company for the taxes so paid, but would have been limited in its recovery to a foreclosure of a lien on the property for the amount of such taxes. The court stated:

“. . The fact that it has foreclosed its lien and is now the owner of the property and may now be compelled to pay such taxes in order to protect its title, does not give it any greater right. It is, therefore, not entitled to a personal judgment against the lumber company for the amount of taxes which it may be required to pay in order to redeem the property from the judgment in favor of the state. The trial court properly denied the appellant’s prayer for such judgment.”

It therefore appears to be the rule in Texas that one who forecloses under a deed of trust is not entitled to a personal judgment against a mortgagor for taxes paid by the mortgagee either before or after foreclosure under a deed of trust.

In the present case, we construe the language in the notes and deeds of trust to mean that any taxes which became due before foreclosure became a part of the secured debt and that Miller Company was not personally liable because of the contractual provisions limiting liability and because of the ruling of the courts in Stone v. Tilley, supra, and Praetorians v. State, supra.

Wood asserts that since they had a grazing lease on the property they had to pay the taxes in order to protect their lease. We find that argument to be without merit because Wood had already foreclosed under their deeds of trust when the taxes were discovered to be due. Wood did not pay the taxes to protect their lease, but paid the taxes as owners of the property to protect their title. Whatever leasehold interest Wood had was merged with the fee simple title upon foreclosure and purchase of the property by Wood at the foreclosure sale. Payment of delinquent taxes thereafter was to protect the title of Wood.

The judgment of the trial court is reversed and judgment is here rendered that appellees take nothing and that all costs be assessed against appellees.


text:
    KITCHEN DESIGNS, INC., Appellant, v. Fred WOOD, et ux., Appellees.
    No. 8649.
    Court of Civil Appeals of Texas, Texarkana.
    April 30, 1979.
    Rehearing Denied June 26, 1979.

      Thomas A. Melody, Dallas, for appellant.
    Richard A. Sayles, Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for appellees.
   RAY, Justice.

This is basically a suit brought under the Texas Deceptive Trade Practices Act. Kitchen Designs, Inc., appellant (original plaintiff), brought suit against Dr. Fred Wood and wife, Sara Jane Wood, appellees (original defendants), in Dallas County Court at Law, Number Three, for the sum of $782.89 remaining due and unpaid on a remodeling contract. The Woods filed a counter-claim alleging that the work had not been done properly and asked for relief and treble damages under the Texas Deceptive Trade Practices Act, Tex.Bus. & Comm. Code, Sec. 17.41, et seq. (Supp.1978-1979). The Woods admitted that the $782.89 was unpaid and that they would owe that amount if the jury found that the work had been done properly and timely. The trial court then, under Tex.R.Civ.P. 266 with agreement of counsel, realigned the parties such that the Woods became the plaintiffs on their claim under the Texas Deceptive Trade Practices Act and Kitchen Designs, Inc. became the defendant.

The jury, in answer to special issues, found that Kitchen Designs had not performed its construction work in a workmanlike manner and had failed to perform the work within a reasonable time under the contract. The jury also found that the Woods had not failed to cooperate with Kitchen Designs pursuant to the terms of the contract. In addition, the jury found that the Woods were entitled to damages in the sum of $1,941.00. This amount, when trebled, is the sum of $5,823.00, an amount in excess of the trial court’s jurisdiction. The court reduced the damages to $3,000.00 plus $2,000.00 attorney’s fees.

Prior to submission of the case to the jury, the Woods filed a trial amendment raising the amount of actual damages claimed to $1,552.82, requesting such amount to be trebled and asking for graduated attorney’s fees in the total sum of $4,250.00.

The jurisdiction of County Courts at Law is limited to cases where the amount in controversy does not exceed $5,000.00. Tex.Rev.Civ.Stat.Ann. art. 1970a (Supp. 1978-1979). Whether or not jurisdiction exists in the County Court at Law is determined by the amount alleged in the-plaintiffs’ petition. Universal Life and Accident Insurance Company v. Fields, 422 S.W.2d 722 (Tex.1967); Ken Pruitt Buick Co. v. Henderson, 545 S.W.2d 261 (Tex.Civ.App. Eastland 1976, no writ). Kitchen Designs, in its petition, sought recovery on the contract in the amount of $782.89 plus $350.00 attorney’s fees. Because this pleading brought the amount in controversy within the jurisdictional limits of the County Court at Law, jurisdiction attached and no subsequent fact or event would defeat the court’s jurisdiction over that particular claim. Isbell v. Kenyon-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762 (1924); Our Fair Lady Health Resort v. Miller, 564 S.W.2d 410 (Tex.Civ.App. Austin 1978, no writ).

Both the counter-claim and amended counter-claim of the Woods exceeded the jurisdictional limits of the County Court at Law. Since the Woods’ counter-claim was for an amount in excess of the jurisdictional limits of the court, the trial court should háve dismissed the Woods’ cause of action. 2 McDonald’s Texas Civil Practice, Sec. 7.51.2, p. 293 (1970); 15 Tex.Jur.2d Courts, Sec. 81, p. 520 (1960).

The judgment of the trial court in favor of the Woods will be reversed and dismissed.

Appellant, Kitchen Designs, has preserved no error related to the take nothing judgment entered against it by the trial court. The take nothing judgment against Kitchen Designs will therefore be affirmed.

The judgment of the trial court in favor of Dr. Fred Wood and wife, Sara Jane Wood, is reversed and their cause of action is ordered dismissed because it exceeds the jurisdictional limits of the trial court. The take nothing judgment against Kitchen Designs, Inc. is affirmed. Costs are taxed one-half to appellant and one-half to appel-lees.