author: SUMMERS, Chief Justice.

text:
    The ESTATE of Earl ARRINGTON et al., Appellants, v. Eugene Devan FIELDS et al., Appellees.
    No. 1131.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 15, 1979.
    Rehearing Denied March 15, 1979.

      John A. Berke, Jr., Berke & Associates, Laron D. Robinson, Leebron & Robinson, Houston, for appellants.
    Joseph D. Jamail, Nat B. King, S. Gus Kolius, Jamail & Kolius, Frank G. Jones, Fulbright & Jaworski, Ralph Shepherd, Houston, for appellees.
   SUMMERS, Chief Justice.

This is a case in which suit was filed seeking recovery for injuries and damages arising from an incident in which Eugene Devan Fields, plaintiff below, was shot during an altercation with Earl Arrington, a security guard employed by Executive Security Systems of America, Inc., both defendants below. At the time in question, Earl Arrington, hereinafter “Arrington,” was on duty as a security guard on the premises of a convenience store which was owned and operated by Stop N’Go Markets of Texas, Inc., hereinafter “Stop N’Go.” Prior to trial, plaintiff took a nonsuit as to Stop N’Go, but Stop N’Go remained in the lawsuit as a cross-defendant.

The primary theory of recovery relied upon by the plaintiff was based upon a cause of action of negligent hiring. Plaintiff alleged that Arrington willfully, intentionally, and without provocation assaulted and shot Fields, a customer of the Stop N’Go convenience store where Arrington was on duty as an armed security guard. In addition, plaintiff alleged that Arring-ton’s employer, Executive Security Systems of America, Inc., hereinafter “Executive,” was negligent in hiring Arrington as an armed security guard when Executive knew or in the exercise of reasonable care should have known that he was unfit for such a position and thereby created an unreasonable risk of danger to the patrons of the Stop N’Go. It was contended that such actions constituted not only negligence but gross negligence, all of which was a direct and proximate cause of the injuries and damages suffered by Fields.

It is undisputed that on the night of September 17, 1974, Arrington was on duty as an armed security guard at a Stop N’Go convenience store. He was in uniform, wore a badge, and was armed with a .38 caliber handgun. Sometime between 11:15 p. m. and 12:30 a. m., Fields entered this convenience store to make some purchases. As Fields was standing near the check-out counter, Arrington thought he saw Fields shoplift a tortilla from a warming oven. Arrington asked the store clerk to hand him his nightstick and proceeded to approach Fields. Arrington stopped Fields and subjected him to a search, but the search failed to uncover any stolen items or weapons. After the search, some words were exchanged between Fields and Arrington. It is undisputed that Fields did finally leave the store with his groceries. Arrington admitted that at this point Fields was not a threat to the store clerk, the store, or Ar-rington himself. However, Arrington then proceeded to follow Fields out the door. The evidence is conflicting as to what transpired outside the store. There were no eyewitnesses.

Arrington testified that he stepped outside the store, nightstick in hand, in order to be sure Fields was not up to some mischief. Once outside, Fields jumped out from behind some telephone booths and tackled him, knocking him back through the glass doors of the store. Arrington stated that he attempted to defend himself with his nightstick but that Fields tried to grab Arrington’s still holstered gun. During the scuffle, the handgun discharged and struck Fields in the lower abdomen. Arrington testified that his gun never left his holster. According to Arrington, Fields stepped back after being shot, picked up his groceries, and started to walk away. He had to then kick Fields down in order to keep him from leaving before the police and ambulance could arrive.

Fields, on the other hand, gives a different description of the events outside the store. He testified that upon leaving the store Arrington assaulted him from behind with the nightstick. Fields stated he attempted to leave the premises, but Arring-ton continued to beat him. Finally, Arring-ton pulled out his gun and, while threatening to kill him, shot Fields. Fields fell to the ground whereupon, Fields said, Arring-ton continued to curse and kick him. Fields contends he then lost consciousness.

Arrington had been hired by Executive approximately four months prior to the incident here in question. Arrington had applied for the job and was put to work the next day. Although his employment application answered “yes” to the question “Have you ever been arrested?,” no answer was given to the next question concerning the type and disposition of arrest. Arring-ton testified that no one had ever questioned him concerning his record. Likewise, an application question concerning experience with handguns was left blank. According to Arrington, he merely signed the application in blank and was not aware of who filled it out.

Executive’s management personnel agreed that a person with a criminal record should not be hired as a security guard and recognized the need for thorough screening of potential employees. They admitted that a person with a long criminal record was unacceptable as an armed security guard. However, Executive’s management personnel were unaware of Arrington’s lengthy criminal record and nothing in his personnel file demonstrated any further investigation into his background.

Arrington testified that he was given no instructions or training when Executive issued him a handgun. Executive’s management described Arrington’s training as “on-the-job” training which consisted of assigning him to night watchman duties at construction sites. In addition, Executive contended Arrington was given an undetermined amount of classroom instruction.

The case was tried to a jury. In response to special issues submitted, the jury found that Executive failed to exercise reasonably prudent care in its investigation of Arring-ton’s background prior to his employment and placement as an armed security guard, that such was a proximate cause of the injuries suffered by Fields, and that this constituted gross negligence. (Special Issues Nos. 1-3) The jury also found that Arrington failed to act as a reasonably prudent security guard before and at the time Fields was shot, that such was a proximate cause of the injuries suffered by Fields, and constituted gross negligence. (Spiecial Issues Nos. 4-d) In addition, the jury refused to find that Fields had provoked Arring-ton to the point that Arrington’s actions thereafter were that of a reasonably prudent guard or that Arrington acted in self-defense. (Special Issues Nos. 7 and 9) On the basis of the jury findings, the district court rendered judgment in favor of Fields against Arrington and Executive, jointly and severally, for $500,000.00 actual damages, against Executive for $200,000.00 exemplary damages, and against Arrington for $100,000.00 exemplary damages. Ar-rington died after entry of judgment and his estate was substituted in his stead. From this adverse judgment, Executive and Arrington have perfected this appeal predicated upon fifteen points of error.

. We will first address the complaints raised by appellants’ points of error nos. 3, 4, and 5. The primary thrust of appellants' contention is that the trial court erred in allowing plaintiff to proceed to trial with his negligent hiring cause of action. These points of error complain of the submission of Special Issues Nos. 1, 2, and 3 which dealt with whether Executive was negligent in employing Arrington, whether such employment was a proximate cause of Fields’ injuries, and whether such employment constituted gross negligence on the part of Executive. Appellants argue that these issues were rendered moot because Executive had stipulated that at the time in question in this lawsuit, Arrington was within the course and scope of his employment for Executive.

Appellee Fields responds by contending that appellants failed to preserve any error, if any existed, in the submission of Special Issues Nos. 1, 2, and 3. We agree. Appellants complain that the trial court erred in submitting these special issues. However, neither the transcript nor the statement of facts contain any objections made by appellants prior to the submission of these special issues to the jury. The transcript does contain appellants’ amended motion for new trial in which these complaints are raised. Rule 272, T.R. C.P., provides that all objections and exceptions to the court’s charge not presented before the charge is read to the jury shall be considered as waived. The law is well-settled that such objections may not be raised for the first time on motion for new trial or appeal. Volkman v. Eakman, 496 S.W.2d 752, 757 (Tex.Civ.App.—Fort Worth 1973, ref’d n. r. e.); Whitfield v. Shames, 484 S.W.2d 615, 616 (Tex.Civ.App.—Amarillo 1972, ref’d n. r. e.); Wilson v. King, 311 S.W.2d 957, 959 (Tex.Civ.App.—Austin 1958, ref’d); McDonald, Texas Civil Practice, Vol. 3, sec. 12.27.2, pp. 402-3. The burden is upon appellant to see that a sufficient record is presented on appeal so as to preserve any error upon which he wishes to rely. Rule 413, T.R.C.P.; Bituminous Casualty Corporation v. Moore, 396 S.W.2d 249, 251 (Tex.Civ.App.—Tyler 1965, ref’d n. r. e.). Appellant’s points of error nos. 3, 4, and 5 are overruled.

We will next address the complaint raised in appellants’ second point of error. Appellants contend that the trial court erred in admitting into evidence plaintiff’s exhibit no. 2, Arrington’s criminal record. Plaintiff’s exhibit no. 2 showed that Arrington had a total of seven prior criminal convictions resulting in four trips to the penitentiary. The convictions included burglary with intent to commit theft, grand larceny, burglary, theft, and a bogus check charge. The trial court instructed the jury that these prior convictions were only admitted into evidence for the limited purpose of showing the degree of care exercised by Executive in hiring Arrington as an armed security guard and his competency to be employed in such a capacity. Appellants argue that the admission of these prior convictions was error because (1) the convictions were too remote in time, (2) Ar-rington’s criminal record was unavailable to Executive at the time of his hiring, (3) the only purpose served by the admission into evidence was to prejudice and inflame the jury, and (4) the prior convictions did not exhibit a propensity to commit acts of violence, as Arrington is charged with in the instant case.

Arrington’s most recent conviction occurred in 1964, approximately 13 years before his testimony in this case. As a result, appellants contend that these convictions were too remote in time. A number of cases are cited in appellants’ brief which all state that a prior conviction may not be admitted for impeachment purposes unless it is sufficiently recent so as to have some bearing on the present credibility of the witness. However, these cases are not relevant to any issue presented by the present case. Arrington’s criminal record was not admitted to impeach his credibility.

Appellants also argue that Arrington’s prior record was unavailable to Executive at the time he was hired and that it is unfair to charge Executive with knowledge of facts which were unavailable to it. However, the evidence reflects that Arring-ton’s criminal record could have been obtained from at least two sources. The record was available to Arrington himself and, secondly, the record was available to the Texas Board of Private Investigators and Private Security Agencies, which licenses private security companies and with whom Executive was required to register its employees. Whether Executive should have pursued these avenues more diligently to discover Arrington’s prior record is a question for the jury and does not control its admittance into evidence.

The third ground tendered by appellants in support of their second point of error is that Fields’ cause of action for negligent hiring was rendered moot by Executive’s stipulation that Arrington was within the course and scope of his employment at the time in question. Appellants take the position that the doctrine of negligent hiring is merely a means of imputing liability for the acts of the servant to the master. Where the liability link between the master and the servant has already been established, as in the present case by the stipulation, appellants contend that the negligent hiring issue becomes immaterial. The only purpose served by the admission into evidence of Arrington’s criminal record, conclude appellants, was to prejudice and inflame the jury. We disagree.

The basis of responsibility under the doctrine of negligent hiring is the master’s own negligence in hiring or retaining in his employ an incompetent servant whom the master knows or by the exercise of reasonable care should have known was incompetent or unfit and thereby creating an unreasonable risk of harm to others. Texas courts have long recognized the master’s duty to make inquiry as to the competence and qualifications of those he considers for employment, especially where engaged in an occupation which could be hazardous to life and limb and requires skilled or experienced servants. This is a duty owed by the master to his other servants and to the public. Texas & Pacific Railway Co. v. Johnson, 89 Tex. 519, 35 S.W. 1042, 1044 (1896); Jeffcoat v. Phillips, 534 S.W.2d 168, 172 (Tex.Civ.App.—Houston [14th Dist.] 1976, ref’d n. r. e.); Gulf, C. & S. F. Railway Co. v. Hays, 40 Tex.Civ.App. 162, 89 S.W. 29, 31 (1905, dism’d); Shoemaker v. Texas & Pacific Railway Co., 29 Tex.Civ.App. 578, 69 S.W. 990, 992 (1902, n. w. h.).

The cases in this area are far from clear cut, but through a thorough analysis of the case law, a discernable pattern does appear. The primary factor which distinguishes many of the cases is whether or not punitive damages are sought by the plaintiff. Many of the cases cited in the parties’ briefs are ones in which negligent entrustment was asserted as the basis of recovery. While negligent entrustment and negligent hiring are distinct theories of recovery, we believe that in the context of the instant case they are analogous in that both require proof that (1) the servant/entrustee is incompetent or unfit and (2) the master/entrustor knew or in the exercise of ordinary care should have known of such incompetence or unfitness.

Where only ordinary negligence is alleged, the case law supports appellants’ contention that negligent hiring and re-spondeat superior are mutually exclusive modes of recovery. In eases where the plaintiff was relying upon the theory of negligent entrustment of a motor vehicle, the courts have refused to permit the plaintiff to proceed with this separate ground of recovery against the owner where the derivative liability of the owner has already been established by an admission or stipulation of agency or course and scope of employment. Frasier v. Pierce, 398 S.W.2d 955, 958 (Tex.Civ.App.—Amarillo 1965, ref’d n. r. e.); Luvual v. Henke & Pillot, Division of Kroger Co., 366 S.W.2d 831, 838 (Tex.Civ.App.—Houston 1963, ref’d n. r. e.); Patterson v. East Texas Motor Freight Lines, 349 S.W.2d 634, 636 (Tex.Civ.App.—Beaumont 1961, ref’d n. r. e.). The rationale of this rule is equally applicable to a case involving negligent hiring. Once the applicability of the respondeat superior doctrine is established, the competence or incompetence of the servant and the care which was exercised in his employment are immaterial issues. The master is liable for the acts of his servant whether the servant is competent or not.

However, a different situation is presented where the plaintiff has alleged ordinary negligence against the driver and gross negligence against the owner for entrusting his vehicle to a reckless or incompetent driver. In such cases, the courts have recognized that the negligent entrustment cause of action would be an independent and separate ground of recovery against the owner for exemplary damages. Hines v. Nelson, 547 S.W.2d 378, 385 (Tex.Civ.App.—Tyler 1977, n. w. h.); Adams Leasing Co. v. Knighton, 456 S.W.2d 574, 576 (Tex.Civ.App.—Houston [14th Dist.] 1970, n. w. h.). The owner of a vehicle, charged with gross negligence in the entrustment of a vehicle, may not preclude proof thereof by admitting or stipulating agency on the part of the driver or that the driver was within the course and scope of employment. Hines v. Nelson, supra; Adams Leasing Co. v. Knighton, supra. A master may be guilty of gross negligence in hiring an incompetent servant and held liable for exemplary damages where the servant is only found guilty of ordinary negligence. Wilson N. Jones Memorial Hospital v. Davis, 553 S.W.2d 180 (Tex.Civ.App.—Waco 1977, ref’d n. r. e.).

In addition, it is well settled that a master may be subject to derivative liability for exemplary damages resulting from the acts of his servant where (1) the master authorized the doing and the manner of the act, (2) the servant was employed in a managerial capacity and acting within the scope of his employment, (3) the master ratified or approved the act, or (4) the master was negligent in employment of the servant. Wagner v. Hall, 519 S.W.2d 488, 491 (Tex.Civ.App.—El Paso 1975, n. w. h.); P. C. Sorenson Co. v. Bell, 326 S.W.2d 271, 273 (Tex.Civ.App.—Dallas 1959, ref’d n. r. e.); Union Transports, Inc. v. Braun, 318 S.W.2d 927, 941 (Tex.Civ.App.—Eastland 1958, n. w. h.). Therefore, where liability for exemplary damages is sought to be charged against the servant, a stipulation of course and scope of employment by the master may not preclude proof of negligent hiring and thereby prevent imputation of the servant’s liability to the master.

In the instant case, plaintiff charged that both Executive and Arrington were guilty of gross negligence and prayed that punitive damages be recovered against both. The character of Arrington became a material fact issue of the case. Where a master is charged with hiring or retaining in his employ an incompetent servant, the servant’s character is then in issue and may be proven by evidence of reputation or of specific conduct for the purpose of showing that the master knew or by exercising ordinary care should have known of the servant’s incompetence. 2 McCormick & Ray, Texas Law of Evidence, sec. 1502, p. 347 (2d Ed. 1956).

Finally, appellants argue that the trial court erred by allowing Arrington’s criminal record into evidence, because the convictions fail to exhibit a propensity for violence. The basis of appellants’ contention is that Arrington’s record was admitted to prove his character and thereby infer that he acted in conformity therewith on the night in question. That is not the case. The convictions were admitted for the limited purpose of showing that Executive failed to exercise reasonable care and was reckless in employing Arrington as an armed security guard. Arrington’s record was probative of Executive’s diligence in inquiring as to Arrington’s competency and the trial court did not err in admitting it into evidence. The trial court is afforded wide discretion in balancing the probative value of such evidence against the possibility that it might prejudice or inflame the jury. 2 McCormick & Ray, Texas Law of Evidence, sec. 1481, p. 330 (2d Ed. 1956). Appellants’ second point of error is overruled.

We shall next address the complaint raised in appellants’ first point of error which contends the trial court erred in failing to grant a new trial on grounds of newly discovered evidence. Appellants filed an amended motion for new trial alleging that new facts had been discovered subsequent to the trial. These facts, alleged to have been previously unknown through no lack of diligence on the part of appellants, showed that plaintiff had a lengthy criminal record involving acts of violence. Appellants contended that these facts were probative of the issue of who was the aggressor on the night in question and were so material that a different result would be had at a new trial. A hearing on appellants’ amended motion for new trial was held and the trial court overruled appellants’ motion. We sustain this ruling.

Appellants’ amended motion for new trial was not supported by any affidavits. In addition, the record on appeal fails to show that appellants offered any evidence at the hearing on their amended motion for new trial.

A motion for new trial on grounds of newly discovered evidence presents the court with a series of fact questions, the determination of which will be largely left to the discretion of the trial court. Dorbandt v. Jones, 492 S.W.2d 601, 603 (Tex.Civ.App.—Austin 1973, ref’d n. r. e.). It is well settled that in order to require the granting of a new trial on grounds of newly discovered evidence, it is essential that the moving party introduce admissible, competent evidence at the hearing on the motion for new trial showing (1) the existence of the newly discovered evidence, (2) that the moving party had no notice of the existence of such evidence prior to the time of trial, (3) that due diligence was exercised to procure the evidence prior to trial, (4) that the evidence is not merely cumulative and does not tend only to impeach, and (5) that the evidence would produce a different result if a new trial were granted. Anderson v. Griffith, 501 S.W.2d 695, 702-703 (Tex.Civ.App.—Fort Worth 1973, ref’d n. r. e.); Jacobi v. Texas State Board of Medical Examiners, 308 S.W.2d 261, 265 (Tex.Civ.App—Waco 1957, ref’d n. r. e.); McDonald, Texas Civil Practice, Vol. 4, sections 18.16.1-18.-16.5, pp. 285-291.

Appellants cannot claim any error where no admissible, competent evidence was offered at the hearing on their motion for new trial showing the existence of the alleged newly discovered evidence. New Amsterdam Casualty Company v. Jordan, 359 S.W.2d 864, 865 (Tex.1962); Buhidar v. Abernathy, 541 S.W.2d 648, 653 (Tex.Civ.App.—Corpus Christi 1976, ref’d n. r. e.); Bullard v. Carroll Equipment Company, 539 S.W.2d 384, 386 (Tex.Civ.App.—Waco 1976, n. w. h.); Anderson v. Griffith, supra; Meehan v. Pickett, 463 S.W.2d 481, 483 (Tex.Civ.App.—Beaumont 1971, ref’d n. r. e.); Davis Bumper to Bumper, Inc. v. Roberts, 331 S.W.2d 762, 767 (Tex.Civ.App.—Amarillo 1959, ref'd n. r. e.); Jacobi v. Texas State Board of Medical Examiners, supra. The trial court did not abuse its discretion in overruling appellants’ amended motion for new trial on grounds of newly discovered evidence, since none was shown. Appellants’ first point of error is without merit and hereby overruled.

Appellants’ points of error nos. 6-11 challenge the jury’s responses to Special Issues Nos. 4, 6, 7, and 9. Appellants contend that the jury’s findings, that Arrington failed to act as a reasonably prudent armed security guard should have acted under the same or similar circumstances and that such failure constituted gross negligence, have no support in the evidence and are so against the great weight and overwhelming preponderance of the evidence as to be manifestly unjust. In addition, appellants assert that the jury’s failure to find that Fields provoked Arrington to the point that Arring-ton’s actions thereafter were that of a reasonably prudent armed security guard and that Arrington was acting in self-defense on the occasion in question was so against the great weight and preponderance of the evidence as to be manifestly unfair and unjust.

Legal sufficiency, “no evidence,” points are directed at the submission of the special issues to the jury; the real complaint is that as a matter of law the evidence presents no fact question for the jury’s determination. Factual sufficiency, “insufficient evidence,” points challenge the jury’s answers to the special issues. We must construe appellants’ points of error in the instant case as factual sufficiency points, because appellants’ attack is directed at the jury’s responses to the special issues in question. In determining a factual sufficiency point, we must consider and weigh all the evidence to determine whether the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust and the finding therefore be set aside and the cause remanded for a new trial. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Garwood, The Question of Insufficient Evidence on Appeal, 30 Tex.L.Rev. 803 (1952).

Where the evidence is conflicting, the jury must decide the conflict. It was within the jury’s province to judge the credibility of the witnesses and the weight to be given their testimony and to resolve conflicts and inconsistencies in the evidence. Austin Fire Insurance Company v. Adams-Childers Company, 246 S.W. 365, 368 (Tex.Com.App.1923, holding app’d); Owens v. Acme Oil Company, 408 S.W.2d 947, 951 (Tex.Civ.App.—Tyler 1966, ref’d n. r. e.); Peck v. Century Concrete Products, Inc., 375 S.W.2d 459, 462 (Tex.Civ.App.—Fort Worth 1964, ref’d n. r. e.).

We have examined the entire statement of facts and reviewed it in light of the rule announced by the Supreme Court in In re King’s Estate, supra. We deem the evidence sufficient to support the jury’s answers to the special issues submitted and conclude that none of the jury’s answers in response to Special Issues Nos. 4, 6, 7, and 9 are so contrary to the great weight and preponderance of the evidence as to' be manifestly wrong or unjust. Appellants’ points of errors nos. 6-11 are hereby overruled.

Appellants’ twelfth point of error contends that the jury’s award of $500,000.00 for actual damages was excessive and demonstrated that the jury was actuated by prejudice and passion rather than by reason and the evidence. The jury was instructed to consider certain elements of damage, if any, in reaching their determination. The elements of damage to be considered were loss of earnings sustained in the past, loss of earning capacity which will be sustained in the future, physical pain and mental anguish suffered in the past and that which in reasonable probability will be suffered in the future, and physical impairment sustained in the past (other than loss of earnings) and which in reasonable probability will be sustained in the future (other than loss of earning capacity).

In determining whether a verdict is excessive, an appellate court may review only that evidence which is favorable to the award, and the jury’s determination will not be disturbed as excessive where there is any probative evidence to sustain the award. Southern Pacific Transportation Company v. Peralez, 546 S.W.2d 88, 98 (Tex.Civ.App.—Corpus Christi 1976, ref’d n. r. e.); Johnson v. Buck, 540 S.W.2d 393, 417 (Tex.Civ.App.—Corpus Christi 1976, ref’d n. r. e.); Hammond v. Stricklen, 498 S.W.2d 356, 363 (Tex.Civ.App.—Tyler 1973, ref’d n. r. e.); Monsanto Company v. Milam, 480 S.W.2d 259, 268 (Tex.Civ.App.—Houston [14th Dist.] 1972, aff’d 494 S.W.2d 534 [Tex.1973]). The burden of establishing that the jury’s evaluation of damages is erroneous is upon the complaining party. Hammond v. Stricklen, supra. There must be some proof, circumstantial or direct, of bias or prejudice and in the absence of an affirmative showing of such, the appellate court must give every reasonable inference to the evidence in favor of the verdict. Southern Pacific Transportation Company v. Peralez, supra; Hammond v. Stricklen, supra; Sunset Brick & Tile, Inc. v. Miles, 430 S.W.2d 388, 393 (Tex.Civ.App.—Corpus Christi 1968, ref’d n. r. e.).

In the instant case, the record shows that prior to the incident here in question, plaintiff had been employed as a heavy equipment operator. Immediately prior to the shooting, Fields was working as a crane operator with an income of $1,200.00 to $1,400.00 a month. He was in good health. The record also shows that Fields has been unable to return to work because of the injuries resulting from the gunshot wound, although he did testify that he had attempted to go back working as a crane operator. He found himself in great pain, unable to climb up into the crane, and unable to completely control his urination. Fields has a life expectancy of 41.4 years.

Upon being admitting to Hermann Hospital after the shooting, Fields underwent emergency abdominal surgery. The postoperative diagnosis in the surgical operation report stated:

"Penetrating gunshot wound to the left lower quadrant, traversing properitoneally, striking the pubis symphysis and glancing deep through the bladder and exiting the bladder, entering the parietal pritoneum [sic] immediately, not involving any intra-peritoneal structures, becoming lodged deep to the iliac vessels and not involving the iliac vessels.”

A pathology report on pubic bone tissue sent to be analyzed noted “fragments of bone and cartilage and granulation of tissue.” In addition, x-rays revealed that there had been some fragmentation of the bullet in the pelvis and Fields still carries some of these fragments. Appellant Ar-rington called Dr. Thomas McGuire; a neurosurgeon who had examined Fields, to testify concerning plaintiff’s injuries. Dr. McGuire noted that soft tissue in the path of such a bullet was subject to burning, infection, and scarring. This type of wound can cause internal scar tissue which may result in infection, shortening, adhesions, deformities, and pain. In addition, Dr. McGuire stated that a gunshot wound in the lower abdomen is a severe trauma which is capable of inducing shock.

As a result of this gunshot wound, Fields has been hospitalized a number of times. Immediately after the shooting, Fields was hospitalized for about a month and underwent emergency abdominal surgery. On October 16,1974, Fields was again hospitalized as a result of low abdominal pain and fever and once again underwent surgery. Some evidence of destruction of the pubic bone was noted and it was felt that Fields probably had osteitis pubis. Fields remained in the hospital for nearly two weeks. Fields has since been hospitalized a couple of times for a recurrent bladder infection. The bullet was finally removed in March, 1975, and in December, 1975, Fields developed an incisional hernia which had to be repaired.

Fields complains of constant, throbbing pain in his right buttocks which radiates to his right leg and is aggravated by activity. He also contends that he is unable to completely control his urine and must urinate some 25 times a day to avoid wetting on himself. Fields complains of numbness from his hips and groin area, including his testicles, down his legs to his toes which continues with varied severity. Fields was examined by a neurosurgeon, Dr. Alexander Gol, who testified that he had observed palpable muscle spasms in Fields’ lower back. Dr. Gol stated that such an involuntary spasm constituted an objective sign of pain which appeared to be permanent. Fields testified that he had had no sex drive since the shooting and suffered from anxiety because of his inability to provide for his family. Dr. Gol had prescribed a mood elevator, in addition to pain killers, for Fields to help him cope with the pain.

The jury has large discretion in fixing the amount of the award in a case such as this, because personal injury damages are unliq-uidated and not capable of measurement by a definite standard. Southern Pacific Transportation Company v. Peralez, supra. This is particularly true in a case, such as this, where pain and suffering are an important element. Matters such as pain and suffering are peculiarly within the discretion of the jury. Hammond v. Stridden, supra; Monsanto Company v. Milam, supra. We conclude that there was some evidence to support the award in this case and that the jury’s verdict was not excessive. Appellants’ twelfth point of error is overruled.

Appellants’ points of error nos. 13 and 14 contend that the jury’s awards of $200,000.00 exemplary damages against Executive and $100,000.00 exemplary damages against Arrington were excessive and demonstrate that the jury was actuated by prejudice and passion rather than by reason and the evidence. The jury found both Executive and Arrington to be guilty of gross negligence which was defined as “that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the rights and welfare of the public.” Executive and Arrington were, therefore, subject to exemplary damage liability.

In determining the amount of exemplary damages to be awarded, the law furnishes no definite measure of damages and they are of an unliquidated nature. The amount to be awarded rests largely in the discretion of the jury. Southwestern Investment Company v. Neeley, 452 S.W.2d 705, 708 (Tex.1970); Russell v. Truitt, 554 S.W.2d 948, 955 (Tex.Civ.App.—Fort Worth 1977, ref’d n. r. e.); Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687, 692 (Tex.Civ.App.—Fort Worth 1964, ref’d n. r. e.). In con sidering a point of error asserting exces-siveness of an exemplary damage award, we must weigh such factors as the nature of the wrong, the character of the conduct involved, the degree of culpability of the wrongdoer, and the size of the award needed to deter similar wrongs in the future. In addition, the amount of exemplary damages awarded should be reasonably proportioned to the actual damages found. Southwestern Investment Company v. Neeley, supra at 707; Cain v. Fontana, 423 S.W.2d 134, 139 (Tex.Civ.App.—San Antonio 1967, ref’d n. r. e.); Schutz v. Morris, 201 S.W.2d 144, 147 (Tex.Civ.App.—Austin 1947, n. w. h.). We refer to the evidence set out in the first part of this opinion and conclude that the jury did not act unreasonably or abuse its discretion. Appellants’ thirteenth and fourteenth points of error are overruled.

Appellants’ fifteenth point of error contends that the trial court erred in granting judgment against appellants for $800,000.00 because Fields accepted a settlement from Stop N’Go and thereby entitled appellants to “an offset of the amount he accepted in settlement or, alternatively, plaintiff released one-half of his cause of action by accepting such settlement.” Appellants state that they “believe” Stop N’Go paid plaintiff $300,000.00 under “some sort of ‘Mary Carter’ agreement.” It is appellants’ position that under Article 2212a, section 2(d), Tex.Rev.Civ.Stat.Ann., they should be allowed to deduct the amount paid by Stop N’Go in the settlement with plaintiff. In the alternative, appellants argue that plaintiff released one-half of his cause of action by settling with Stop N’Go which should therefore cause appellants’ joint and several liability to be reduced by one-half.

There is nothing in the record which shows that any settlement was made between Stop N’Go and plaintiff. The record merely reflects that plaintiff non-suited Stop N’Go prior to trial. Appellants admit in their brief that no evidence of any settlement, or the terms thereof, was presented to the trial court. We are unable to consider any statements in appellants’ brief which are completely outside the record and unsupported by any evidence. Schlang v. Schlang, 415 S.W.2d 28, 29 (Tex.Civ.App.—Houston 1967, ref’d n. r. e.). Appellants also admit that no special issues regarding any alleged negligence on the part of Stop N’Go were requested or submitted to the jury. There are no findings to support appellants’ conclusion that Stop N’Go is a joint tortfeasor.

Appellee Fields contends that appellants are precluded from raising this point of error on appeal because it is not germane to any assignment of error in appellants’ amended motion for new trial. Since this case was tried prior to January 1, 1978, the question of whether appellant properly preserved his right to complain of some alleged error must be determined on the basis of the Rules of Civil Procedure as they existed at the time of the trial. Noe Diaz and Alice Diaz v. Deavers, 574 S.W.2d 602, 604 (Tex.Civ.App.—Tyler 1978, app. pndng.). The appellants’ points of error in a case such as this, where a motion for new trial was necessary, are restricted to the assignments set forth in their amended motion for new trial. Appellants’ fifteenth point of error is not germane to any assignment of error in their amended motion for new trial and any alleged error is therefore waived. Rivas v. Community Savings and Loan Association, 563 S.W.2d 388, 390 (Tex.Civ.App.—San Antonio 1978, n. w. h.). Appellants’ fifteenth point of error is overruled.

We have considered all of appellants’ points of error and believe them to be without merit and the same are overruled. The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    Charlene Johnson PINKSTON, Appellant, v. Allen Byrd JOHNSON, Jr., Appellee.
    No. 6033.
    Court of Civil Appeals of Texas, Waco.
    Feb. 15, 1979.

      Hilton H. Howell, Ñaman, Howell, Smith, Lee & Muldrow, P. C., Waco, Richard A. Pelley, Nance, Caston & Nall, Sherman, for appellant.
    Bill Walls and W. C. Roberts, Jr., Roberts, Walls & Boydston, Dallas, for appellee.
   HALL, Justice.

This is a venue case. Defendant-appellant Charlene Johnson Pinkston is a resident of Grayson County. Plaintiff-appellee is a resident of Dallas County. This suit was filed in McLennan County. The single question presented for review is whether the order overruling defendant’s plea of privilege to be sued in the county of her residence was correct under the provisions of subdivision 14 of Article 1995, Vernon’s Tex.Civ.St. We hold that it was.

Subdivision 14 of the venue statute provides: “Suits for the recovery of lands or damages thereto, or to remove incumbran-ces upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

Whether the nature or character of a suit falls within subdivision 14 is determined by the relief pleaded for in the plaintiff’s petition. Renwar Oil Corporation v. Lancaster, 154 Tex. 311, 276 S.W.2d 774, 775 (1955); Evans v. Speed, 339 S.W.2d 257, 258 (Tex.Civ.App.—Fort Worth 1960, writ dism.). It is the “ultimate or dominant purpose” of the suit, as shown by plaintiff’s pleadings, that controls. Texaco, Inc. v. Gideon, 366 S.W.2d 628, 631 (Tex.Civ.App.—Austin 1963, no writ); Garrison v. Morrow, 300 S.W.2d 175, 177 (Tex.Civ.App.—Beaumont 1957, writ dism.).

Plaintiff alleged that on April 3, 1959, he and defendant were granted a divorce in the Domestic Relations Court of Dallas County, Texas, but that the judgment of divorce made no provision for the division of the parties’ community property; that the parties reached an agreement as to the division of their property which provided in part that plaintiff receive as his sole and separate property Lot 29, Block 1, of the Castle Crest Addition to the City of Waco, McLennan County, Texas; that the parties had acquired the lot by deed dated May 31, 1954, which is recorded in Volume 742, Page 185 of the Deed Records of McLennan County; that on April 22, 1959, in order to effect the terms of their property division agreement, defendant executed a special warranty deed purporting to convey to plaintiff Lot 20, Block 1, of the Castle Crest Addition to the City of Waco, McLennan County, and that the deed was recorded in Volume 895, Page 427, of the Deed Records of McLennan County; and that “neither party has ever had nor do they have at this time any right, title or interest in and to said Lot 20 and that the citing of Lot 20 was a mistake and should have been listed as Lot 29 of Block 1 of said Addition.” Plaintiff prayed for judgment “vesting title of Lot 29, Block 1, of the Castle Crest Addition to the City of Waco, McLennan County, Texas, out of the defendant and vesting title to said property into the plaintiff, and declaring the previously recorded deed to be null and void, and for such other and further relief to which plaintiff may show himself justly entitled.”

It is the settled rule that a suit for specific performance of a contract to convey an interest in land does not come under the provisions of subdivision 14 of the venue statute. Smith v. Hall, 147 Tex. 634, 219 S.W.2d 441, 444 (1949). Defendant views plaintiff’s petition as acknowledging that she owns an undivided one-half interest in the property in question by asking that the court divest title to the property “out of the defendant” and vest title “into the plaintiff,” and as setting up only a suit for specific performance by her of their property division agreement. Oppositely, plaintiff asserts that he has “clearly [alleged] a suit for reformation of the deed.”

We do not agree with defendant’s construction of plaintiff’s pleadings. Plaintiff did not allege that defendant has breached their agreement and has refused to perform. Rather, plaintiff alleged that defendant complied with the agreement that he receive Lot 29 by executing her deed to him, but that the deed mistakenly described the property to be Lot 20 rather than Lot 29. Plaintiff’s pleadings show that the parties have never owned an interest in Lot 20. It is plain that the dominant purpose of plaintiff’s suit is to correct a mutual mistake by the parties in a deed which was intended by them to effect their property settlement agreement.

Defendant did not except to plaintiff’s pleadings. We agree with plaintiff and hold that the petition may be reasonably construed as alleging a suit for reformation of the deed executed by defendant, and that it would support a judgment for that relief. A suit of that nature comes within the provisions of subdivision 14. Nunnally v. Holt, 1 S.W.2d 933, 934 (Tex.Civ.App.—Texarkana 1927, no writ).

The facts in the Nunnally case were strikingly similar to those in our case. There, the plaintiff alleged that by mutual mistake the defendants conveyed to him an undivided Vsaid interest in an oil and gas lease when it was the intention of the parties that he should, have received an undivided ¼⅛ interest in the lease. He prayed for “judgment directing and compelling defendants to execute a new and reformed mineral deed which shall properly name and fix the interest of the plaintiff” and for “such other and further relief, special and general, in law and in equity, that plaintiff may justly be entitled to.” It was held plaintiff pleaded a suit for correction of the executed deed and not one for specific performance. The court said, “If [plaintiff] should establish the facts alleged, the court would be called upon to decree declaring the mistake and ordering reformation. In effect, by the decree the court makes the deed just what the parties intended it to be. The court may not make determination of his interest in the realty enforceable in any other form. And such decree is sufficient to immediately pass title . . . Thus it would seem that the relief sought and obtainable would be so far immediately concerned with or relating to title to realty as to operate, in view of [subdivision 14], to restrict the venue to the location of the realty. . . . The vital question was the quieting of title to the realty. . [T]he remedy asked is of correction or re-execution of the deed, and not essentially of specific performance.”

In Thomson v. Locke, 66 Tex. 383, 1 S.W. 112, 114 (1886), our Supreme Court said, “The evident intention [of subdivision 14] was to provide the venue in all actions in which the title to land was in controversy.” We hold the present suit is not an action for specific performance. Unquestionably it involves the title to land. See, Norvell v. Stovall, 95 S.W.2d 1313 (Tex.Civ.App.—Beaumont 1936, no writ), which cited the holding in Nunnally v. Holt, supra, with approval.

The judgment is affirmed.


author: COULSON, Justice.

text:
    DAIRYLAND COUNTY MUTUAL INSURANCE COMPANY OF TEXAS, Appellant, v. Jeannie HARRISON, Appellee.
    No. B1949.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 21, 1979.

      James L. Barr, H. Bradford Morris, David E. Lueders, Houston, for appellant.

      John Milutin, Harvill & Hardy, Houston, for appellee.
   COULSON, Justice.

This is an appeal from the denial of a plea of privilege. Appellant Dairyland County Mutual Insurance Company of Texas is a Texas corporation headquartered in Austin, Travis County. Appellee, Jeannie Harrison, brought this action alleging, among other things, violations of the Deceptive Trade Practices-Consumer Protection Act, Tex.Bus. & Comm.Code Ann. § 17.50 (Supp. 1978) in Harris County. We affirm the action of the trial court.

Appellee’s suit arose out of the following facts, as alleged in her pleadings. According to appellee’s original petition, she purchased an automobile insurance policy issued by appellant through Spartan Insurance Agency, a named defendant but not a party to this appeal, on March 19, 1976. She alleges that this policy was purchased in order that an SR-22 form would be filed for her son in Austin, pursuant to the Texas Motor Vehicles Safety Responsibility Act. Appellee alleges that such a form was properly filed and the policy was issued. Prior to the expiration of the one year policy appellee contacted Robert Miller, an agent with Spartan, and informed him that she was concerned that the policy would expire before she could renew it and therefore her son’s form SR-22 would lapse and her son would lose his driver’s license. She alleged that Robert Miller and other employees of Spartan assured her on several occasions that the SR-22 would not be allowed to lapse. She sent a check to Spartan, payable to appellant, on March 23, 1977, on the oral assurance by defendant Miller that the new liability policy would be issued and that the form SR — 22 on file with the Texas Department of Public Safety would not lapse.

On April 4, 1977, however, appellant Dairyland cancelled the policy and the form SRr-22 lapsed. As a result the Department of Public Safety suspended appellee’s son’s driver’s license. Appellee filed suit against appellant Dairyland County Mutual Insurance Company of Texas, Gary Gibson, d.b.a. Spartan Insurance Agency, and Robert Miller based on alternative allegations of violation of the Deceptive Trade Practices-Consumer Protection Act, conversion, and breach of contract. Dairyland filed its plea of privilege to be sued in Travis County, the county of its principal place of business. After hearings to the court appellant’s plea of privilege was overruled. This appeal followed.

Appellant’s brief contains twenty-three points of error addressed to subdivisions 4, 5, 23, 27, 28, and 29a of Tex.Rev.Civ.Stat. Ann. art. 1995 (1964), as well as to section 17.56 of the Deceptive Trade Practices-Consumer Protection Act, Tex.Bus. & Comm. Code Ann. § 17.56 Supp. 1978). Appellee’s brief relies only on section 17.56 of the Deceptive Trade Practices-Consumer Protection Act as the basis for maintaining venue in Harris County. As we find venue was properly sustained in Harris County under section 17.56, we need not consider appellant’s other points of error.

Section 17.56 of the Deceptive Trade Practices-Consumer Protection Act is entitled “Venue” and provides:

An action brought which alleges a claim to relief under Section 17.50 of this subchapter may be commenced in the county in which the person against whom suit is brought resides, has his principal place of business, or has done business. Tex.Bus. & Comm.Code Ann. § 17.56 (Supp. 1978).

Appellant contends first that appel-lee was required to both plead and prove her cause of action under section 17.50 in order to sustain venue in Harris County. To support this contention it cites three cases: Doyle v. Grady, 543 S.W.2d 893, 895 (Tex.Civ.App.—Texarkana 1976, no writ; Hudson and Hudson Realtors v. Savage, 545 S.W.2d 863 (Tex.Civ.App.—Tyler 1976, no writ); and Joe Oil Aromatics, Inc. v. Commercial Fuel Oil Inc., 564 S.W.2d 490, 492 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ). The first two cases, Doyle v. Grady and Hudson and Hudson Realtors v. Savage, were decided prior to the 1977 amendment of section 17.56. The original version of that section provided:

An action brought under section 17.50 . of this subchapter may be commenced in the county in which the person against whom suit is brought resides, has his principal place of business, or is doing business. Tex.Laws Bus. & Comm.Code 1973, ch. 143 § 1 at 322.

We note that the 1977 amendment changed the first phrase of section 17.56 to read “[a]n action brought which alleges a claim to relief under Section 17.50 of this subchapter . . . ” (emphasis added). This change was made after the Doyle and Hudson courts had required that a plaintiff plead and prove his cause of action under the Deceptive Trade Practices-Consumer Protection Act in order to defeat defendant’s plea of privilege under section 17.56 of that act. Clearly the intent of the legislature in changing the wording of section 17.56 was to enable plaintiffs suing under the Deceptive Trade Practices-Consumer Protection Act to maintain venue in one of the counties specified in section 17.56 by alleging their causes of action, and not require them to prove their cases at the plea of privilege hearing and again at the trial on the merits of the cause. This is in line with the express purpose of the act as set out in section 17.44, “Construction and Application”:

This subchapter shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection (emphasis added).
Tex.Bus. & Comm.Code Ann. § 17.44 (Supp. 1978).

It would be neither efficient nor economical to require the plaintiff consumer to present his case in full at a plea of privilege hearing to establish his right to maintain venue in the county of suit. We hold that under section 17.56 it is sufficient for the consumer plaintiff to allege a cause of action under section 17.50 in order to maintain venue in a county where the defendant resides, has his principal place of business, or has done business. The court can look to the pleadings to ascertain that the nature of the cause of action comes within the purview of section 17.50 of the Deceptive Trade Practices-Consumer Protection Act.

The case of Joe Oil Aromatics, Inc. v. Commercial Fuel Oil Inc., supra, was handed down on April 6,1978, subsequent to the effective date of the amendment to section 17.56, which was May 23, 1977. The court in that case followed the decisions in Hudson and Hudson, supra, and Doyle, supra, in requiring that the plaintiff both plead and prove a cause of action to support venue under section 17.56. The opinion does not indicate the date on which that suit was filed nor does it refer to which version of section 17.56 is being applied. However, we note that the court’s language in its discussion of that section refers to venue “in the county in which the person against whom the suit is brought is doing business”, at 492. (emphasis added). We infer from this that the Joe Oil case was decided under the original and not under the amended version of Section 17.56, which now reads “has done business.” (emphasis added). Therefore our decision is not in conflict ,!with that of the Joe Oil court.

Appellee here filed her suit on July 11,1977. The effective date of the amended version of section 17.56 was May 23, 1977. The rule of law is that venue of an action is controlled by the law in effect at the time of institution of the suit. Temple News Agency v. Want Ads of Waco, 573 S.W.2d 269 (Tex.Civ.App.—Waco 1978, no writ); Hanssard v. Ledbetter, 561 S.W.2d 34 (Tex.Civ.App.—Waco 1978, no writ); Cacanay Corp. v. Shepherd, 336 S.W.2d 779 (Tex.Civ.App.—Houston, writ dism’d). This case falls under the present version of Section 17.56 and it is sufficient for appellee to have alleged a cause of action under section 17.50; she need not also prove her cause of action at the plea of privilege hearing.

In accordance with our views expressed above, we examine the petition to determine whether appellee has alleged a cause of action under section 17.50 of the Deceptive Trade Practices-Consumer Protection Act. Section 17.50(a) provides:

(a) A consumer may maintain an action if he has been adversely affected by any of the» following:
(1) the use or employment by any person of an act or practice declared to be unlawful by Section 17.46 of this sub-chapter;
(2) breach of an express or implied warranty;
(3) any unconscionable action or course of action by any person; or
(4) the use or employment by any person of an act or practice in violation of Article 21.21, Texas Insurance Code, as amended, or rules or regulations issued by the State Board of Insurance under Article 21.21, Texas Insurance Code, as amended.
Tex.Bus. & Comm.Code Ann. § 17.50(a) (Supp. 1978).

Appellee’s petition alleges that her suit is brought under section 17.50 and that:

. the acts and practices of the Defendants were unconscionable and that they took advantage of Plaintiff’s lack of knowledge, ability and experience to a grossly unfair degree and/or resulted in a gross disparity between the value received by your Plaintiff and the consideration paid to Defendants by your Plaintiff . . .

We hold that, for the purposes of maintaining venue under section 17.56, the alleged cause of action is sufficient under section 17.50(a)(3).

Appellant contends, however, that appellee’s cause of action does not comply with section 17.50 because appellee is not a “consumer” as defined in section 17.45(4). That section defines “consumer” to mean:

An individual . . . who seeks or acquires by purchase or lease, any goods or services. Tex.Bus. & Comm.Code Ann. § 17.45(4) (Supp. 1978).

Appellant argues that an insurance policy is neither “goods” as defined in section 17.-45(1) nor “services” as defined in section 17.45(2). We disagree. We hold that an insurance policy is covered by the definition of services as including “. . . services purchased or leased for use.” Tex.Bus. & Comm.Code Ann. § 17.45(2) (Supp. 1978). Appellant cites no authority to support its contention that an insurance policy is not a service as defined under this act. Furthermore, section 17.50(a)(4) provides for the maintenance of an action by one who has been adversely affected by “the use or employment by any person of an act or practice in violation of Article 21.21, Texas Insurance Code . . ..” We have examined Article 21.21 of the Texas Insurance Code, Tex.Ins.Code Ann. (Supp. 1978), and conclude that a person would in fact have to seek or acquire a policy of insurance in order to be adversely affected by the acts or practices defined therein to be unfair practices. We hold that insurance policies are included within the coverage of section 17.-50 of the Deceptive Trade Practices-Consumer Protection Act.

Appellant next contends that appel-lee is precluded from maintaining venue under section 17.56 of the Deceptive Trade Practices-Consumer Protection Act because shé did not allege subdivision 30 of article 1995, Tex.Rev.Civ.Stat.Ann. (1964) in her controverting affidavit. To support this argument appellant cites the cases of Dahlstrom Corp. v. Asphalt Equipment Inc., 543 S.W.2d 183 (Tex.Civ.App.—El Paso 1976, writ dism’d) and Cowan v. State, 356 S.W.2d 170 (Tex.Civ.App.—Austin 1962, writ dism’d). Appellant’s reliance on these cases is misplaced. Both stand for the proposition that if a special venue statute comes under the provisions of subdivision 30, article 1995, then a defendant’s plea of privilege to be sued in the county of his residence could only be attacked by the plaintiff by timely filing of a controverting affidavit asserting his right to maintain venue under the special venue statute, and could not be attacked by a motion to quash, motion to strike or other means. Neither case required the plaintiff to specifically allege subdivision 30 of article 1995 in addition to alleging the special venue statute upon which he relies in his controverting affidavit. Here appellee properly filed a controverting affidavit alleging that venue was proper in Harris County under section 17.56 of the Deceptive Trade Practices-Consumer Protection Act. This was all that was necessary to properly attack appellant’s plea of privilege.

We find that appellee properly alleged a cause of action under section 17.50. Appellee must also, however, establish that appellant “resides, has his principal place of business, or has done business” in the county where suit was instituted. Tex.Bus. & Comm.Code Ann. § 17.56 (Supp. 1978). At the hearing on the plea of privilege appellee introduced into evidence page 1066 of the yellow pages for the Houston area, dated June of 1977. At the top of column 2 of that page is a heading in heavy black lettering listing “DAIRYLAND COUNTY MUTUAL INSURANCE COMPANY OF TEXAS”. Centered under this heading is the word “AGENTS” followed by a list of nine insurance agencies, one or more of which have addresses within Harris County. For the purpose of determining venue under section 17. 56, this is sufficient to prove that appellant “has done business” in Harris County by advertising for the purpose of soliciting business in Harris County.

Appellee properly complied with section 17.56, Tex.Bus. & Comm.Code Ann. (Supp. 1978), Deceptive Trade Practices-Consumer Protection Act by alleging a cause of action under section 17.50 of that act and establishing that appellant has done business in Harris County.

We affirm the trial court in overruling appellant’s plea of privilege.

Affirmed.

      . A form SR-22 is a form required by Texas Department of Public Safety — Safety Responsibility Regulation 201.13.00.004 § 6 promulgated under Tex.Rev.Civ.Stat.Ann. art. 6701h § 2(a) (1977). The regulation provides:
      Sec. 6. “Proof of financial responsibility” in the form of an insurance certificate issued by a liability insurance company shall be filed on form SR-22 prescribed by the Department. The names of all the parties covered and all the motor vehicles insured must appear on the form.

      . Subdivision 30 of article 1995 provides: Special Venue—Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    The ST. PAUL INSURANCE COMPANY, Appellant, v. BONDED REALTY, INC., Appellee.
    No. 6777.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 21, 1979.
    Rehearing Denied March 14, 1979.

      Peticolas, Luscombe, Stephens & Windle, W. C. Peticolas, Colbert N. Coldwell, El Paso, for appellant.
    Collins, Langford & Pine, Robert S. Pine, El Paso, for appellee.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a summary judgment case involving a claim by an insured against its insurer under what is commonly called an errors and omissions policy. The question involved is whether the errors and omissions policy provides coverage for deceptive trade practices on the part of the insured. We hold that there was no coverage, and we reverse the judgment of the trial Court and render judgment for the insurer.

Judgment was recovered against Appel-lee by the buyer of a house in which Appel-lee acted as the realtor in effecting the sale. Appellee was insured by Appellant under an errors and omission policy; upon Appellant’s refusal to appeal the judgment, Ap-pellee then compromised and settled it and brought this action against Appellant under the policy seeking to recover the amount of the compromised judgment which it had to pay together with attorney’s fees. Both parties moved for summary judgment and the trial Court granted that of Appellee, allowing recovery for the sums it was required to pay plus additional attorney’s fees. It is from this summary judgment that this appeal is taken.

Appellant’s insuring agreement stated: “To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages arising out of the conduct of their business as real estate agents and caused by any negligent act, error or omission of the Insured or any other person for whose acts the Insured is legally liable.” The policy also had an exclusion clause, which Appellant pled, that the insurance does not apply “To any dishonesty, intentional fraud, criminal or malicious act, * * * ” The judgment against Appellee was based on jury findings that in the sale of the house it committed two deceptive trade practice acts under the Deceptive Trade Practices — Consumer Protection Act, Tex. Bus. & Comm. Code Ann. sec. 17.46 (Supp. 1978 — 79). One such act was found by a cluster of issues to be: that there was in fact a defect in design or construction of the roof, that the Appellee knew of it, that Appellee knowingly withheld the fact of the defect from the buyers, and that such action was a deceptive trade practice which was a producing cause of adverse effects on the buyers. The second deceptive trade practice act found by the jury is one on the statutory list of sec. 17.46(b) and it was a finding that Appellee represented the house and all of its component parts to be new when it was not new.

The question presented, then, is whether these acts are within the coverage of the policy for negligent acts, errors or omissions as limited by the exclusion for dishonesty, intentional fraud, criminal or malicious acts. We conclude, for the reasons to be stated, that these findings under the Deceptive Trade Practices Act are not covered by the omissions and errors policy.

Section 17.46 of the Act says: “(a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Subsection (b) then contains a list of specific acts or practices which the law identifies as false, misleading or deceptive. The Supreme Court has said: “If any one of those listed acts or practices is found factually to have happened, it is by law an unlawful deceptive trade practice because subsection 17.46(b) makes it unlawful.” Spradling v. Williams, 566 S.W.2d 561 (Tex.1978). In the case before us, we have two findings of deceptive trade practices which resulted in the judgment against the Appellee — two “unlawful” acts. To recover under the policy of insurance, Appellee must prove that the loss occurred from its “negligent act, error or omission.” In that it has failed. It was not insured against its unlawful acts — to the contrary, any “dishonesty, intentional fraud, criminal or malicious act” was excluded from coverage. Its loss here, the judgment against it, is for unlawful acts for which there is no coverage.

The judgment of the trial Court is reversed and judgment is here rendered that Appellee take nothing against Appellant,


author: O’QUINN, Justice.

text:
    DAN INGLE, INC., Appellant, v. Bob BULLOCK, Comptroller of Public Accounts of the State of Texas, Appellee.
    No. 12901.
    Court of Civil Appeals of Texas, Austin.
    March 7, 1979.
    Mike Willatt, Austin, for appellant.
    John L. Hill, Atty. Gen., Diane C. Van Helden, Asst. Atty. Gen., Austin, for appel-lee.
   O’QUINN, Justice.

Dan Ingle, Inc., brought this suit against the Comptroller of Public Accounts under provisions of Section 19 of Article 6252-13a (Administrative Procedure and Texas Register Act) seeking to set aside determination by the Comptroller that plaintiff was delinquent in payment of $41,846.14 in sales taxes due the State and $11,196.50 in sales taxes due the City of Houston.

The Comptroller specially excepted to In-gle’s petition as insufficient in law for failure of Ingle, prior, to filing suit, to pay the assessment made and to accompany payment with a written protest or claim for refund, as required under Articles 1.05 and 20.10(G), Title 122A, Taxation-General.

The trial court sustained the Comptroller’s special exception, and upon Ingle’s failure to amend, the court held it was without jurisdiction to entertain the suit.

Ingle has appealed and claims (1) that the trial court erred in sustaining the Comptroller’s special exception and (2) erred in holding that “Article 1.05 of Title 122A is a jurisdictional requirement that must be complied with to establish a right of action to protest an assessment of taxes under Title 122A or under the Limited Sales, Excise and Use Tax Act.”

Appellant argues: “The Administrative Procedure and Texas Register Act specifically states that the procedure for judicial review, contained in Section 19, is ‘cumulative of other means of redress provided by statute.’ The legislature clearly thought that it was expanding the remedies available to the citizens, and providing a procedure for judicial review in addition to, and as well as, any other preexisting statutory procedures.”

Substantially the same contention was made and overruled by this Court in 1977 in Robinson v. Bullock, 553 S.W.2d 196 (Tex.Civ.App. Austin 1977, writ ref’d n. r. e.), cert. denied, 436 U.S. 918, 98 S.Ct. 2264, 56 L.Ed.2d 759 (1978). After reviewing the statutes and case law relevant to the issue raised, this Court held that since the taxpayer “. . . failed to comply with requirements of Article 1.05 and pay the tax before filing suit, the trial court correctly concluded that the court was without jurisdiction to hear and decide the merits of appellant’s suit.” (553 S.W.2d 198, col. 2).

It is settled that the Legislature, in enacting Articles 1.05 and 1.06 (and the predecessor statutes, Articles 7057b and 7047j, Y.A.C.S.), provided a special method by which taxpayers who question validity of a tax may bring suit against the State to recover taxes paid under protest; and that these statutes created a right not existing at common law and prescribed a remedy to enforce the right; therefore the courts may act only in the manner provided by the statutes which created the right. Robinson v. Bullock, supra, p. 197, col. 2; and cases there cited.

In Robinson this Court pointed out that the contention that Section 19 of the Administrative Procedure Act “repeals by implication the substantive rights and correlative procedural remedies granted by Articles 1.05 and 1.06 fails to take into account settled law to the contrary.” Robinson, pp. 197-8.

The trial court properly sustained the Comptroller’s special exception and, upon Ingle’s refusal to amend, ordered the suit dismissed for want of jurisdiction.

Judgment of the trial court is affirmed.

Affirmed.


author: REED, Justice.

text:
    ILLINOIS VALLEY ASPHALT, INC., and V. H. Callender Construction Co., Movants, v. HARRY BERRY, INC., Harry Berry, Individually, and Paul Berry, Individually, Respondents.
    Supreme Court of Kentucky.
    Jan. 16, 1979.
    Rehearing Denied April 10, 1979.
    J. D. Kemp, John M. Dixon, Jr., Turner, Dixon, Kemp & Fletcher, Hopkinsville, for movants.
    W. Douglas Myers, Richard A. Dennis, Milburn C. Keith, Keith & Myers, Hopkins-ville, William E. Scent, Tarrant, Combs & Bullitt, Louisville, for respondents.
   REED, Justice.

This is a dispute concerning the allowance and computation of damages resulting from a breach of contract to produce and purchase stone. In substance, the circuit court held that the movant, Illinois Valley Asphalt, Inc., had breached the agreement and was responsible to the respondent, Harry Berry, Inc., for the market value of a quantity of stone used by Illinois Valley without payment, and was also responsible to Berry for lost profits in the amount of twenty-five cents a ton for stone which Berry was prevented from selling because of Illinois Valley’s breach.

When Illinois Valley and Callender, the other party to the agreement against whom the circuit court adjudged liability to Berry for a relatively insubstantial sum, appealed to the Court of Appeals, that court affirmed in an unpublished opinion stating that “substantial evidence exists in the record to support the judgment of the lower court.” The opinion did not describe or otherwise allude to the “substantial evidence” to which it had reference. We confine our decision to the errors asserted by the movants in their motion for discretionary review which we have granted. We reverse the Court of Appeals and the circuit court for the reasons later stated.

I

Despite the voluminous record, the operative facts necessary to a disposition of this appeal are simple. Illinois Valley decided to bid to furnish asphalt for the construction of a new airport runway at Fort Campbell, Kentucky. Berry operated a quarry located near Hopkinsville, Kentucky, where he produced limestone rock. Illinois Valley and Berry concluded that additional equipment and manpower were needed in the rock production project. They brought Cal-lender into the deal. Callender had a large quarrying operation in Illinois and had access to sufficient equipment and manpower to help Berry produce the needed rock, which the parties estimated to amount to between 135,000 and 180,000 tons of rock. Illinois Valley, Callender and Berry entered into a poorly drawn written agreement. The substance of the understanding seemed to be this: Callender and Berry would produce limestone rock to be purchased and. used by Illinois Valley in the Fort Campbell project. Callender agreed to pay Berry ten cents per ton royalty on all stone produced by Callender. Illinois Valley agreed to pay “Berry and/or Callender” $1.35 per ton for rock produced by each company. Illinois Valley was given the right to use certain equipment and facilities at the Berry quarry site and agreed to use Berry’s scales to weigh the rock for computation of payment purposes. Callender moved his equipment onto the Berry Quarry. A dispute soon developed. Illinois Valley bought rock elsewhere.

Illinois Valley and Callender sued Berry. Illinois Valley’s claim was that Berry failed to produce, necessitating purchase of rock elsewhere for a higher price. Callender alleged that Berry harassed him in his operations on the Berry quarry thus making his performance more difficult and expensive.

On conflicting evidence, the trial judge pinned the blame on Illinois Valley. It was the judge’s finding that Illinois Valley failed to purchase 47,000 tons of stone from Berry in violation of “the intent and understanding on behalf of each of the contracting parties,” and that Berry had lived up to all obligations imposed upon him by the agreement. The judge awarded Berry twenty-five cents a ton for lost profits on 47,000 tons of stone, amounting to $11,750, as part of his judgment against Illinois Valley.

II

Paul Berry’s testimony was the only evidence on which the award of lost profits could have been based. He testified in pertinent part:

“Q-75 What kind of profit would Harry Berry, Inc. have made on the prices set forth in the agreement on a per-ton basis if it had received a substantial part of the rock business of Illinois Valley Asphalt?
A. If we had been able to maybe sell them forty-five thousand or fifty thousand tons we might have made — might have made maybe twenty-five cents a ton off of that.
Q-76 Twenty-five cents a ton?
A. Approximately that if we were lucky."

Loss of anticipated profits as an element of recoverable damages for breach of contract is fully recognized in Kentucky. Graves v. Winer, Ky., 351 S.W.2d 193 (1961). Mere uncertainty as to the amount will not preclude recovery. Roadway Express, Inc. v. Don Stohlman & Assoc., Inc., Ky., 436 S.W.2d 63 (1968). There must be presented, however, sufficient evidence on which a reasonable inference as to the amount of damage can be based. McCormick, Handbook on the Law of Damages, Sec. 28, 104-06 (1935). In proving a claim of loss of profits of an established business, the record of past profits is usually the best available evidence. Mere “estimates” of witnesses will not serve, if books were kept. McCormick states: “Opinions of witnesses as to the amount of profits that would have been gained are not admissible, except where the opinion is that of an expert based upon relevant facts.” Id., at 107-10 (emphasis supplied).

Professor Dobbs makes the following interesting observations:

“Courts have been increasingly willing to award special damages in many kinds of cases. That is to say, courts have long since ceased to protect only capital value. With the increase in willingness to award other kinds of special damage, courts have also shown an increased willingness to award lost profits, subject always to the requirement that some rational basis for computation be furnished.”

Dobbs, Handbook on the Law of Remedies, Ch. 3, Sec. 3.3, 154 (1973). (emphasis supplied).

We hold that the “guess estimate” of Paul Berry based on what might have happened “if we had been lucky” falls far short of the quality of evidence required to permit an inference of the approximate amount of damage or to furnish a rational basis for computation of the loss. The circuit court erred in its award of lost profits to Berry on its counterclaim against Illinois Valley.

Ill

We are convinced the trial court erred in assessing Berry a recovery of $1.35 a ton from Illinois Valley on rock produced by Callender. The trial court found that Callender produced 18,103 tons of rock on the Berry premises that were not accounted for in its sale of rock to Illinois Valley. The trial court held that this rock had been “converted” by Illinois Valley and that the contract rate of $1.35 per ton represented the “fair and reasonable value” of the material at the time of conversion.

In our view, the question of “conversion” was not involved. All three parties treated the contract as valid in the legal positions they assumed before the trial court. They have to take the bitter with the sweet. See Olive Hill Limestone Co. v. Gay-Coleman Const. Co., 244 Ky. 822, 51 S.W.2d 465, 466 (1932). Illinois Valley owed Berry $1.35 a ton on rock produced by Berry. Illinois Valley owed Callender $1.35 a ton on rock produced by Callender. Callender owed Berry ten cents a ton on all rock produced by Callender.

The award of the trial court transferred Callender’s responsibility to Illinois Valley. It allowed Berry to recover the contract rate for stone produced by Callender. Berry was entitled to the royalty rate of ten cents per ton on stone produced by Callen-der with credit to Callender for stone produced by Callender but used by Berry. The award to Berry of $1.35 a ton on stone produced by Callender cannot stand.

The decision of the Court of Appeals is reversed, the judgment of the circuit court is reversed and the cause is remanded to the circuit court with directions to enter a new judgment recomputing the damages awarded in accordance with this opinion.

All concur except CLAYTON and STERNBERG, JJ., who dissent.

AKER, J., did not participate in the decision of this case.

      . The movant, Illinois Valley, concentrates on the damage issue and only weakly questions the imposition of liability for breach of contract. Neither movants nor respondents discuss or mention possible applicability of the U.C.C. to the damages issue. Cf. KRS 355.2-107.


author: CLAYTON, Justice.

text:
    KENTUCKY COMMISSION ON HUMAN RIGHTS, Movant, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1102, Respondent, and Wadsworth Electric Manufacturing Company, Incorporated, Respondent.
    Supreme Court of Kentucky.
    Feb. 6, 1979.
    Galen A. Martin, Thomas A. Ebendorf, Kentucky Commission on Human Rights, Louisville, Thomas L. Hogan, Louisville, for movant.
    Bernard C. Fox, Beckman, Lavercombe, Fox & Weil, Cincinnati, Ohio, Robert E. Ruberg, O’Hara, Ruberg, Cetrulo & Osborne, Covington, for respondent International Brotherhood of Electrical Workers, Local 1102.
    Philip J. Kennedy, Jr., Kennedy & Moore, Cincinnati, Ohio, R. Barry Wehrman, Wehr-man & Wehrman, Covington, for respondent Wadsworth Electric Manufacturing Co., Inc.
   CLAYTON, Justice.

In February 1975, twelve female employees of the Wadsworth Electric Manufacturing Company filed complaints with the Kentucky Commission on Human Rights alleging sexual discrimination in violation of KRS Chapter 344 by their employer and the International Brotherhood of Electrical Workers, Local 1102. Attempted conciliation having failed, a hearing was held before the Commission. The Commission pursuant to its Findings of Fact, Conclusions of Law and Order, determined that Wads-worth Electric and the union, respondents here, had engaged in sexual discrimination in violation of KRS 344.040 and KRS 344.-060. Upon appeal to the Kenton Circuit Court, respondents were granted summary judgment on the grounds that the Commission’s order was void for lack of a valid determination of probable cause under KRS 344.200. The Court of Appeals affirmed by a divided panel. This court granted discretionary review, and we must decide whether the Commission made a proper determination of probable cause, and, if not, whether summary judgment was proper.

At all times relevant to the matter under consideration, KRS 344.200(2) read:

The commission shall determine within thirty days after the complaint has been filed whether there is probable cause to believe the respondent has engaged in an unlawful practice.

If the Commission concludes that probable cause does not exist, the complaint is dismissed, subject to reconsideration upon application by the complainant. If probable cause is found, the Commission is required to attempt to eliminate the unlawful practice by conciliation. However, KRS 344.200 does not set out any formal guidelines governing the procedure to be followed in making a probable cause determination.

The sole document evidencing a finding of probable cause is a memo from the compliance director and field investigator to the executive director of the Commission, dated 3-6-75, bearing a checkmark after the words “Accepted and probable cause found.” Both the trial court and the Court of Appeals were of the opinion that the memo, since it failed to contain “facts upon which the person empowered to find probable cause made this initial determination,” was not a sufficient finding of probable cause under the statute. However, we need not pass upon whether the Commission made a probable cause determination as contemplated by KRS 344.200, for we agree with the dissent that such a determination is not a prerequisite to a hearing.

The dissent focused on KRS 344.210, which governs hearing procedure. Under that section, the Commission must give notice of a hearing on the complaint unless: a) the complaint has been dismissed; b) a conciliation agreement has been reached; or c) an application for reconsideration has been filed. The dissent stressed that there “is no provision that requires the complaint be dismissed unless probable cause is found to exist.” Since the hearing provision does not mention probable cause as a prerequisite, we hold that lack of such a finding does not warrant summary dismissal. Accordingly, we reverse, noting that respondents, who had the benefit of a full-scale hearing and detailed findings of fact, were in no way prejudiced by the failure, if any, of the Commission to make a probable cause determination.

The decision of the Court of Appeals and the judgment of the trial court are reversed, and the cause is remanded to the trial court for proceedings consistent with this opinion.

All concur except AKER, J., who did not sit.