author: MASSEY, Chief Justice.

text:
    FORT WORTH NEUROPSYCHIATRIC HOSPITAL, INC., Appellant, v. BEE JAY CORPORATION, Appellee.
    No. 18120.
    Court of Civil Appeals of Texas, Fort Worth.
    July 12, 1979.
    Rehearing Denied Sept. 20, 1979.
    Second Motion for Rehearing Overruled Oct. 18, 1979.

      Garrett & Burkett and Mike R. Burkett, Fort Worth, for appellant.
    Staples & Foster and Ross T. Foster, Hurst, for appellee.
   OPINION

MASSEY, Chief Justice.

Bee Jay Corporation, hereinafter termed Bee Jay, brought suit against Fort Worth Neuropsychiatric Hospital, Inc., hereinafter termed Hospital, for damages because of breach of contract. Trial was to a jury, upon the verdict of which judgment was rendered for Bee Jay for $122,700.00 in damages. Such amount was that by which Bee Jay suffered loss of rentals from a Dr. Dolenz because of Hospital’s breach. Hospital appealed.

We affirm.

We have heretofore had an aspect of the case under consideration. Bee Jay Corp. v. Fort Worth Neuropsychiatric, 557 S.W.2d 161 (Tex.Civ.App.—Fort Worth 1977, no writ). Upon that occasion our holding was that disposition of the case by a summary judgment was improper; that issues existed making the case one which should be tried on the merits. Such a trial did follow, and it is from the judgment rendered therein that the instant appeal is presented. Observed in our former opinion was that the claim of Bee Jay was that Hospital had violated a sales contract; that the suit of Bee Jay was for Hospital’s breach of contract.

Important in the consideration of the appeal is to recognize that rule of law relative to the Statute of Frauds, to-wit: the inhibitory provisions of the statute shall not apply where a fraud would result if repudiation of an oral contract were permitted or where the case is such that the non-enforcement of the contract — or the enforcement of the statute — would, itself, plainly amount to a fraud. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921). As it should, the law has supplied a positive rule to insure that an exception to the statute is provided for the prevention of an actual fraud, as distinguished from a mere wrong, which if not prevented would foreclose relief for actual harmful loss. Kirk v. Beard, 162 Tex. 144, 345 S.W.2d 267 (1961). See also “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.1972); and cases annotated under Tex.Dig., “Estoppel”, “(Representations)-Future events”.

In the instant ease Bee Jay has no right to relief by way of rescission of contract because title to the realty involved has passed into the hands of third persons. However, relief by recourse to remedy of damages for breach of contract is available if the Bee Jay right to make proof by parol evidence is proper, and suffices to prove that character of action. Were that not so there would remain available to Bee Jay the equitable remedy of restitution. Where one person is accountable to another on the ground that otherwise he would unjustly benefit or the other unjustly suffer loss remedy is available in equity if not at law. See Restatement of the Law, Restitution (1937).

One reason for our expression upon the law, stated in the paragraph in which we cited Hooks, Kirk, and “Moore" Burger, is because in the instant case there was an erroneous written lease involved, to be hereafter detailed, and that contract is unenforceable as a writing (as a written lease) because of misdescription of property intended to be leased. That lease, from Bee Jay to a Dr. Dolenz, was for an initial five year period beginning January 1,1970, plus option for Dolenz to renew and extend the same for a period of five years at same rental as before, to-wit: $1,500.00 per month. The location and identification of the premises stated to be leased was erroneously stated to have been in a Block 3 of a particular survey, when that actually intended as the premises was in a different block. Dr. Dolenz did actually enter upon the premises intended to be leased to him by Bee Jay. He had occupied the premises for over a year before the events which gave rise to the litigation took place. In other words, what we attempt to show is that Dr. Dolenz and Bee Jay understood and took action upon that as to which they had contracted. There has never been dispute between Dr. Dolenz and Bee Jay over their agreement of lease. Indeed Bee Jay, though a corporation, has at all times in fact been the alter ego of Dr. Dolenz, who was its president and owner of all the Bee Jay stock. Materiality of that fact does not exist in this case. No fraud was accomplished or even attempted by a misuse of the Bee Jay relationship by Dr. Dolenz as its alter ego. No one was ever thereby deceived to his prejudice. Furthermore, until about February 10,1971, Hospital was also the alter ego of Dolenz, who was its president and owner of all the stock. Materiality of that fact is not a factor in this case.

Background information would serve to clarify what might seem to be a very complicated situation. Reflected in the record is that in the conduct of the business of a psychiatric hospital the hospital frequently desires that physicians in psychiatric practice maintain offices upon its premises; of course that means those physicians whose patients in sufficient number to become profitable to the hospital are directed to be hospitalized or are expected to be so directed. Therefore, it is probable that even without any contract relative thereto Dr. Dolenz would have been supplied with substantially the same office premises as those deemed to have been provided by contract of Bee Jay. That is, it would have been probable up to the time circumstances of dispute developed, about two and one-half years later, when Dr. Dolenz’ personal difficulties with new management of Hospital resulted in the ouster of Dolenz.

In further simplification: Dr. Dolenz, as a businessman, was interested in handling his affairs in such manner as to minimize the amount of his taxes. In the accomplishment of such objective of “tax avoidance” (as contrasted with “tax evasion” which would be improper) he caused corporations to be formed of which he became sole owner, and as to which he was the alter ego. It was primarily for tax purposes he formed the two corporations, Hospital and Bee Jay.

Therein lies the “key” to Dolenz’ rather loose handling of the affairs of both corporations. Different parcels of realty, the whole of which was generally used by Hospital for hospital purposes, apparently was owned by Bee Jay and Dolenz. Bee Jay owned some of them and Dolenz owned others. None was jointly owned. Dolenz, as an individual, knew the premises he would occupy on Hospital’s premises. Hospital — as alter ego of Dolenz — knew what premises Dolenz would occupy. Bee Jay, also alter ego of Dolenz, was in accord and fully informed. It was for tax purposes that there was agreement of these relative to the occupancy of Dolenz; hence it initially was of small importance that the premises be properly described in the lease which, purportedly, was of premises Bee Jay had the right to lease and the right to receive rents from Dolenz as Bee Jay’s tenant. If the premises proved to have been erroneously described (as it was) and, if that proved to be important to be corrected, it was thought by these parties that no problem would be presented for they might easily accomplish such. To them what was important (for tax purposes) was that there be something written as evidence for the tax collector that there was the $1,500.00 monthly rent — payable to Bee Jay — and not the free occupancy by Dr. Dolenz.

Whether the parties’ agreement was formally or informally made there was meeting of the minds — whatever the object sought to be thereby accomplished — of the two corporations with one another and with Dr. Dolenz. This meeting of the minds was upon the matter of the leased property, the lease period, and upon the Bee Jay entitlement to receive monthly rents at $1,500.00 as from Dolenz. Consideration for the agreement was not a problem for it could be found existent, and — as applied to the rights of Bee Jay — might be found existent in its capacity as a third party beneficiary of the contract of Dolenz and Hospital.

Hereinabove described is presented the situation when a California domiciled corporation, the Neuro-psychiatric Hospital and Health Services, Incorporated, became interested in the purchase of all the stock of Hospital plus purchase, for Hospital, as its wholly owned subsidiary, all the real estate of Bee Jay and of Dolenz.

In general chronological order, the • factual circumstances were shown to have been:

1. As of January, 1970, Dr. Dolenz and Bee Jay owned all the properties proximate to the corner of West Magnolia and South Adams Streets in Fort Worth, all generally referred to as 1066 West Magnolia, and being premises which may be treated as leased by Hospital, except for a part thereof leased to Dr. Dolenz by Bee Jay pursuant to an agreement made one and one-half months prior. (This was the lease which failed as a “writing”. Nevertheless our holding is that it, or the oral contract of which it was intended to be a memorandum, never failed as a lease upon the premises intended for the period and upon the terms therein prescribed.)
2. The agreement effective as of 1 January, 1970 between Bee Jay and Dolenz relative to the aforesaid premises, (occupied and in use by Dolenz from that date), was one by which he was obligated to pay Bee Jay rent at $1,500.00 per month for an initial lease period of 5 years, with option for Dolenz to renew and extend for an additional 5 years. What this amounted to was an oral lease because of the failure of the written instrument to describe the premises constituting the actual subject of their contract. Neither Bee Jay nor Dolenz ever owned the property described in the “writing”. (A question exists upon whether it was Bee Jay or Dr. Dolenz who owned the property intended to be leased. In the circumstances of this case we deem the question immaterial.) Consideration to Bee Jay as its return performance was for Hospital to permit Dolenz to remain on premises occupied by his contract with Bee Jay, with Bee Jay to have the rent from Dolenz at $1,500.00 per month and for Hospital to receive nothing in the form of rentals. At no time did Hospital ever claim any right to receive rent.
3. About 1 February, 1971, the California domiciled organization, Neuro-psychiat-ric Hospital and Health Services, Incorporated, became interested in the operations of Hospital. Through its officers and attorney (that is those who were the officers and attorney at the time) they became acquainted with the true situation existent as described above. The officers and attorney of such corporation were aware that Dr. Dolenz, as an individual, officed in a building on the hospital premises; that his tenancy was under agreement by Hospital that he have the right, by his agreement of lease with Bee Jay, and that by such agreement any entitlement to rent from Dolenz, at $1,500.00 per month, was a right of Bee Jay and not of Hospital; that term of the agreement of Dolenz tenancy was for the initial 5 year period from January 1, 1970, with Dolenz’ right to renew for 5 years at same rent.
4. Neuro-psychiatric Hospital and Health Services, Incorporated, the California domiciled corporation, at all times having notice and knowledge as stated above, made a deal with Dolenz and Bee Jay. It was to acquire from Dolenz, as owner of all the stock of Hospital and as fee owner of some of the real estate used in the hospital operations, the entire stock of Hospital (so that it would be a wholly owned subsidiary of the California domiciled corporation); and at the same time obtain from Dolenz and Bee Jay — for Hospital, as its wholly owned subsidiary, — title to all the realty used in its business. The consideration to Dolenz in exchange was agreed to be 80,000 shares of stock in the California domiciled corporation plus option to acquire more at a prescribed price. For Bee Jay the consideration in exchange for its realty was for Hospital to honor its contract with Dolenz and Hospital to the effect that Dolenz be tenant on the premises — now owned by Hospital in fee — under the provisions of contract existent between Bee Jay and Dolenz.
5. The transactions were consummated. Pursuant to consummation Bee Jay and Dolenz transferred all the real estate to Hospital as the newly constituted wholly owned subsidiary corporation. Do-lenz received his stock in the parent corporation. The officers of Hospital remained the same. Dolenz’ position as president was reconfirmed at meeting of the board of directors of Hospital. After this time the hospital business which had theretofore been conducted from the premises continued as before to all outward appearances and for all essential purposes; the difference being that Hospital (all of the stock in which was owned by the corporation domiciled in California) from time of the consummation of the transactions held the legal title to the premise.
6. 9 February, 1971, at a board meeting of Hospital (immediately prior to consummation) there was written into the minutes and subscribed (by Dolenz), relative to the consideration Bee Jay would receive for its property (acquired the day following): “[T]he only compensation the BEEJAY CORPORATION is receiving is continuation of a lease with Dr. Bernard Dolenz for $1500 a month . . Dr. Dolenz will not pay additional rentals to the Fort Worth Neu-ropsychiatric Hospital since this was part of the agreement and consideration of the BEEJAY CORPORATION to release said properties without compensation.”
7. Following the transaction(s) in early 1971 (whereby the California domiciled corporation became owner of all the stock in Hospital, with Hospital becoming the fee owner of the land from which its business was conducted) by deeds executed February 10,1971, there was, with the concurrence of the parent California domiciled corporation, a board meeting of the officers of Hospital as the wholly owned subsidiary. Thereat there was re-election and reconfirmation of the corporate officers as theretofore constituted. Dr. Dolenz was reconfirmed as president. As part of the minutes reduced to writing and signed officially by Dolenz was the following: “Dr. Dolenz will continue to pay rent to the BEEJAY CORP. of $1500 monthly as per agreement of February 9.” The reference was intended to mean either the Hospital meeting of February 9, 1971, or the corporate meeting of Bee Jay’s board of directors on February 8th, 1971, (or which reflected that date). In the minutes of Bee Jay’s meeting there was the following recitation: “The BEEJAY CORPORATION will continue the lease agreements with Dr. Bernard Dolenz for $1500 a month per the lease agreement dated November 1969, as additional compensations for the sale and release of the real estate comprising the hospital operation.”
8. 10 February, 1971, was apparent consummation date for the entire transaction, or transactions, here involved. The question exists, was Hospital’s ownership and occupancy lawfully burdened by and subject to an agreement of lease made by Bee Jay and Dolenz; and was that fact provable as “without” the statute of frauds?
9. Approximately one and one-half years later, and beginning about September in 1973, the “new” management of Hospital decided to oust Dr. Dolenz from the portion of the hospital premises which he claimed right to occupy by the terms of his agreement of lease from Bee Jay. (The “new” management did not include those who had been the managers as of the prior transactions which we describe as consummated on February 10, 1971.) Dolenz resisted ouster. Hospital filed a suit in Forcible Entry and Detainer and this culminated in Dolenz being evicted. Bee Jay was intervenor in the Forcible Entry and Detainer action.
10. Following his eviction Dolenz discontinued further payments to Bee Jay as rent. Bee Jay’s cause of action against Hospital was born in the Dolenz ouster. Damages claimed by Bee Jay was the amount of rent it would have received from Dolenz, or would have had the right to demand of Dolenz, except for the fact of the ouster. By its suit Bee Jay declared upon the theory of contract and sought to recover from Hospital because of its breach. In connection with the foregoing the officer(s) and attorney of the California domiciled corporation — as of the time it acquired the stock of Hospital — had by this time ceased to have such connection. New executive personnel had been selected to conduct the business of Hospital. These were the agents of Hospital who sought to oust Dolenz. On trial there was not the benefit of evidence from anyone other than Dolenz who had been an officer or attorney in February of 1971. There was nothing ■ to controvert Bee Jay’s proof that i both the parent corporation and its i subsidiary, Hospital, had notice of and had consented that Hospital permit and contract for continued occupancy of the premises by Dr. Dolenz, upon rental owed by him to Bee Jay, or to honor the pre-existent contractual agreements. There was nothing to contradict the Bee Jay evidence that the promised true exchange consideration for its deed to Hospital was the latter’s promise to continue to accord Dolenz rights as tenant, with any right to receive rents of him to be Bee Jay’s and not Hospital’s.

In answer to three special issues the jury found, in favor of Bee Jay, as follows: (1) There was an agreement between Bee Jay and Hospital, at time of the conveyance of the properties to Hospital on February 10, 1971, that Dr. Dolenz would have the right to remain as an occupant in accordance with the provisions of the instrument which was the lease so providing (but which, as we have shown, misdescribed the location of the premises); (2) that had he been permitted, Dr. Dolenz would have exercised his option to extend the primary period of the lease an additional five years; and (3) $36,-900.00 was the amount of monies received by Bee Jay from Dolenz as rentals subsequent to February 10, 1971.

(Warranting notice is that Dr. Dolenz was not made a party to this suit. By provision of the important contract of transfer by Dolenz of all his stock in Hospital he had agreed to the following: “The Transferor (Dolenz) agrees to indemnify and hold harmless Neuro-Psychiatric (transferee), its successors and assigns, from and against any and all liability, loss, cost and expense, including reasonable attorneys’ fees, caused by any breach or other failure of the representations, warranties and covenants set forth in this Part III of this Agreement.” It would be under this, if under any part of the agreement with the California domiciled corporation, that there would be a right to make a claim against Dr. Dolenz because a loss might be suffered by anyone as result of the judgment in this case in favor of Bee Jay. It is indicated in the briefs that such a case pends for trial. The questions which might arise thereunder are not matters for our consideration on the instant appeal.)

Before considering the points of error advanced by Hospital in other complaint" we will state that our conclusion is that the verdict of the jury was one which sufficed upon the issues of fact to support the judgment for Bee Jay. An agreement having been found, and by the evidence indisputably breached by Hospital to the financial detriment of Bee Jay — Bee Jay having the enforceable contractual right to receive what was contracted with the California domiciled corporation (Hospital having received deed of Bee Jay to all the Bee Jay real estate, and being the wholly owned subsidiary of the parent corporation, having full notice of the Bee Jay contractual right) —and, Hospital, upon election or re-election of the same board of directors as before, having ratified the Hospital-Dolenz-Bee Jay contract — Bee Jay was entitled to that which it would have received had there been no breach by Hospital.

It' is to be observed that there was no way by which Bee Jay could have mitigated its damages if in fact there was the entitlement to receive them; and that if Bee Jay was not entitled to any consideration whatever, it necessarily must be considered to have made a free gift of its land and improvements to Hospital. This is so because for purposes proper to be considered Bee Jay and Dolenz must be viewed exactly as one would view two separate entities or individuals — with Dolenz in his individual capacity having no fiduciary relation to Bee Jay.

Our conclusion is that the transactions: (a) that between Bee Jay and Dr. Dolenz which created the initial rights of Dolenz to occupy the premises in question and the return right of Bee Jay to receive the rents therefor from him; and (b) the highly involved one between Bee Jay, Do-lenz, and Hospital on the one hand and the California domiciled corporation on the other — which was coupled with benefits to said foreign corporation, and to Hospital in its new condition as the wholly owned subsidiary corporation (to receive title to real estate which included the premises under oral lease from Bee Jay to Dolenz) — both constituted transactions which, under usual circumstances, as between parties usually involved in litigation, would be transactions “within” the Statute of Frauds and unenforceable for that reason. Likewise, evidence in parol which purported to establish the parties’ oral contractual rights would be inadmissible. Under the facts in this case, to enforce the defenses provided by the statute to prevent recovery by Bee Jay would be to accomplish an actual fraud upon it and, under sanction of law, to deny it any recovery for that actual harmful loss which it undoubtedly would have suffered. That to which we refer is the failure to receive that consideration promised in exchange for Bee Jay’s real property, the receipt of which is affirmed by hospital (as well as the California domiciled corporation). Hospital should be estopped to deny its promise of the return consideration to which it had been committed and because of which it had received tangible benefits. We hold all transactions to be “without” the Statute of Frauds, enforceable despite the inhibitions which ordinarily would be proper to apply, with the parol evidence hearing thereupon admissible to prove the factual circumstances.

In stating the above we include the phase of transaction (b) in which there must be considered to have been the oral agreement for tenancy of Dr. Dolenz for more than one year. We also include the circumstances culminating in the execution of deeds on February 10, 1971, which have application in that thereby was the agreement honored as part of the return consideration of Hospital. Ordinarily unenforceable is oral agreement for contractual performance in part which clearly could not be performed within a period of one year, when intended as consideration for a deed or lesser interest in real estate. However, ordinarily the true and actual consideration for a deed, etc., may be proved by parol by one who has fully performed his own contractual obligations. Without justification to have certain proof received in contract cases it ordinarily should be excluded where as a part of it would be shown that the return performance — on oral agreement of the other party — could not be completed within one year. Here there is justification for the receipt of the proof on trial of the case.

There is alternate theory by which af-' firmance would be proper. Considered as a mere oral promise on the part of Hospital to • make compensation by way of return performance in providing the intended space on the premises to which it received title by deeds on November 10,1971, and considered as the complete performance by Bee Jay of its part of the contract when it executed its deed, judgment in the case might be affirmed on a theory that the proper rule of construction relative to application of the statute of frauds is: “A contract which by its terms is capable of being performed within one year from the date of its making by one party, and which has been fully performed by such party within the year, is not within the statute of frauds.” To that effect was the holding in City of Tyler v. St. Louis Southwestern Ry. Co. of Texas, 99 Tex. 491, 91 S.W. 1 (1906). See also 37 C.J.S. “Statute of Frauds” § 251 p. 762, “Performance by One Party” (1943). In City of Tyler, supra, there was agreement by a railway company to maintain the location of its shops in the City of Tyler in the future in consideration of deed to it of land or interests therein from the city and third persons in its behalf, with all the conveyances and transactions incident thereto fully accomplished within one year. The court held the railway company bound by contract.

While perhaps not on the identical factual situation in City of Tyler, supra, there is disagreement of other Texas cases upon inferences of the statement. 6 A.L.R.2d 1053 (1949), “ANNOTATION Performance as taking contract not to be performed within a year out of the statute of frauds”, and, in supplement of that previously written under the annotation, beginning at p. 1118, and supplemented on p. 1139, et seq.

Generally, it is in instances where the matter of irreversible injury has not actually resulted from the breach to the party who has fully performed that the statement in City of Tyler, supra, is cast in question. There the court did not consider the matter of impropriety of use of the statute where to do so would in itself constitute a fraud, though undoubtedly it would have been appropriate for the court to have done so under the facts. In the instant case we believe the stronger reasons for holding by the transactions with which wé deal here should be considered to be “without” the statute to be because if it were otherwise the statute would be used to perpetrate fraud on Bee Jay. However, irreversible injury to Bee Jay has actually resulted from the breach by Hospital, and the decision in City of Tyler, supra, fortifies our holding that the statute of frauds should not apply in this case.

By holding the transactions “without” the Statute of Frauds it follows that the parol testimony objected to by Hospital was properly admitted to prove the case of Bee Jay. ■ All of such evidence was of probative force and effect sufficient to support the judgment. As applied to the jury findings our holding is that none of them was so contrary to the greater weight and preponderance of the evidence as to be clearly erroneous.

By what is written to this point Hospital’s chief points are overruled.

Though Hospital presents a point of error that Special Issue No. 3 should not have been submitted, there was another point which complained of the judgment amount because Dr. Dolenz was found by the answer thereto to have paid Bee Jay less than $1,500.00 per month rent during the term of occupancy inquired about. Hospital seeks benefit because Bee Jay did not insist that Dolenz pay the amount contracted. The error is overruled as without consequence. Bee Jay could have forgiven Dolenz all failures to pay the amount of rentals agreed during his occupancy. As between Hospital and Bee Jay it would be the amount of the latter’s entitlement from Dr. Dolenz from time of his ouster, had he not been ousted, that its damages would properly be measured. By evidence not in dispute, if there was enforcible obligation of Hospital to honor a lease from Bee Jay to Dolenz on the premises in question, it would be upon the right of Bee Jay to have Hospital honor it as one under which Bee Jay’s entitlement would be $1,500.00 per month. Answer returned to the special issue was essential to the judgment. Thereby the court was enabled to compute the amount for which a correct judgment should be rendered. A correct judgment amount was thereby computed. The issue actually amounted to a defensive special issue.

Heretofore mentioned was that there had been litigation between Hospital and Dr. Dolenz in a case of Forcible Entry and Detainer action. The final result, despite the entry of Bee Jay as intervenor in the action, was Hospital’s successful ouster of Dolenz. Hospital contends that by reason of the foregoing Bee Jay’s cause of action was barred (as by a prior action) from seeking the recovery awarded by judgment in this ease. By Tex.R.Civ.P. 746, “Only Issue”, is provided that the only issue to be tried in such a proceeding is the right of plaintiff to possession of the premises from which the defendant is sought to be evicted. Tex.Rev.Civ.Stat.Ann. art. 3994 (1966), “No bar” provides that such proceedings would not amount to a bar of certain other actions. Of these the provisions are sufficient to encompass the suit of Bee Jay. Bee Jay could not have been hampered in prosecution of the instant suit because of his intervention in the Forcible Entry and Detainer action.

Because of Hospital’s complaints leveled against Special Issue No. 1 we copy the same in full:

“SPECIAL ISSUE NO. 1.
“Do you find from a preponderance of the evidence that on February 10, 1971, at the time of the conveyance of the properties in question to Fort Worth Neuropsychiatric Hospital Inc. that there was an agreement between Bee Jay Corporation and Fort Worth Neuropsychiatric Hospital Inc. that Bernard J. Dolenz would have the right to remain as an occupant in accordance with the provisions of the instrument designated as Plaintiff’s Exhibit No. 1 and Bee Jay Corporation being entitled to receive the rentals provided in said instrument? “You are instructed that an agreement may be express or implied. An express agreement is one in which the mutual assent of the parties and the terms of the agreement are expressly stated, either orally or in writing. An agreement is implied when its terms are not expressly stated by the parties, but an agreement may be reasonably inferred from, and approved by, the facts and circumstances attending the transaction.
“ANSWER: There was such an agreement.”

On the foregoing the following complaints were made of Special Issue No. 1 before the trial court and upon the appeal:

(a) it did not present an ultimate issue of fact as raised by the pleadings and evidence;
(b) the language used constituted a comment on the weight of the evidence;
(c) the instruction made a part thereof was an incorrect statement of law.

Under (a) and (b) Hospital adopts the theory that the agreement about which there was inquiry was necessarily one upon which there was an original meeting of the minds of the parties on the specific date, February 10, 1971 (date of the deeds by both Bee Jay and Dr. Dolenz to Hospital), and not an agreement which might have been earlier made as to which the meeting of the minds of the parties persisted on February 10th. By the issue there was no mention or reference to any antecedent time and/or circumstances of the contract to which evidence admitted on trial had relation. However, such evidence as there was did actually relate thereto.

Whether or not it was effective to transfer title to the described realty to Hospital, there was by Hospital the receipt of Bee Jay’s deed as consideration due to Hospital — by contract — and upon consideration from Hospital promised to Bee Jay in return. Under these circumstances the jury could not have been deceived. Their finding should be given controlling effect. The inquiry must be construed to have meant that persisting as of the time of the Bee Jay ■ performance by execution of the deed the consideration agreed in exchange to Bee Jay, as due by Hospital, was the promise of Hospital that Dolenz should have the rights of a tenant on its property for the remainder of a ten year period — if option of extension was exercised — with Bee Jay entitled to receive accrued rents by reason thereof at $1,500.00 per month. The points of error Dy which there is complaint are overruled.

Heretofore written upon was that, as of the time for conveyances to Hospital by Bee Jay and by Dolenz, Hospital actually was (or was to be considered as of that time) the wholly owned subsidiary corporation of the parent California domiciled corporation. Hospital was “on notice” of every material fact. Through its officers it knew and agreed upon the rights and benefits both Bee Jay and Dolenz either should receive or, perhaps, had already received as the return consideration from Hospital to Bee Jay, and from Hospital and such parent corporation to Dolenz.

Under (c) there is assertion to the effect that the burden of proof placed upon Bee Jay was less onerous than it should have been. It was contended that the incorrect statement of law upon express and implied contracts, — was primarily because of failure to instruct the jury that necessary to the existence of contract is the mutual assent of the parties, — and also because the jury was told that an implied contract could result without the mutual assent of the parties.

The complaint of incorrect statement of law is overruled. The term “agreement” could not have conveyed anything different from a mutual assent of the parties. The term “agreement” means a meeting of the minds of the parties upon the subject matter. Duncan Coffee Co. v. Chiles, 136 S.W.2d 929 (Tex.Civ.App.—Galveston 1940, no writ). The subject matter, of course, would be that which was consideration, or what each party should give or receive in exchange. The jury was not told that an implied contract could result without mutual assent of the parties. It was told that it might be inferred that by mutual assent of the parties there resulted an agreement of contract.

It is believed that all points of error presented have been discussed. In any event, each point of error presented has been severally considered in the preparation of the opinion; all of them are overruled.

Judgment is affirmed.

OPINION ON MOTION FOR REHEARING

Hospital has pointed out an error of fact in our opinion which it deems material and to have resulted in an erroneous legal conclusion.

We did err in stating that Bee Jay did not receive anything of value for the transfer of land and improvements to Hospital other than its right to receive the rents discussed in the opinion. As pointed out by Hospital Bee Jay received (in addition) a portfolio of stock belonging to Hospital valued at $75,000.00.

Pointing out that the case is one in which Bee Jay did receive benefit of the bargain made, though not the full consideration it expected, Hospital relies upon certain language of the Supreme Court to support its claim that the Statute of Frauds should be held to apply. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (Tex.1957).

Cowden, according to Hospital, stands for the proposition that the Statute of Frauds cannot be circumvented if the “harm” consists of simply not receiving full consideration or the failure to get full benefit of a bargain. Upon this construction of Cowden Hospital proceeds, as we understand it, upon the theory that since Dolenz was the alter ego of Bee Jay and received further substantial consideration for the transfer of all real estate, Bee Jay had not sustained “actual loss” so as to make the transaction — considered as the transfer of the Bee Jay property — one in which the application of the Statute of Frauds to prevent recovery would result in a fraud.

We have considered the authority of Cowden, along with the opinion of the Court of Civil Appeals in the same case, and along with the opinions in other cases to which there was reference. We find the contention of Hospital unsound. It is obvious from the authorities that where a party in a position analagous to that of Bee Jay cannot show that “actual loss” has been or will be sustained, meaning “substantial out-of-pocket loss”, the opposite party should be allowed to defeat his claim by invoking the Statute of Frauds. Here, however, Bee Jay has shown “actual loss”.

The doctrine of “de minimus non curat lex” stands for the proposition that law does not care for or take notice of very small or trifling matters. Anguiano v. Jim Walter Homes, Inc., 561 S.W.2d 249, 255 (Tex.Civ.App.—San Antonio 1978, writ ref’d n. r. e.). It was to this doctrine the Supreme Court had reference in Cowden. We certainly are ready to treat some amount of “loss” which is a mere trifle — for example a matter of a few dollars, or property right which measured in money could only amount to such — as insufficient result of fraud to authorize a court to refuse to honor the Statute of Frauds. However, in this case the “actual loss” of Bee Jay is considerably more than a trifle. Involved were many months of rentals at $1,500.00 per month. This qualifies as an “additional and substantial out-of-pocket loss”, sufficient cause to refuse to permit the Statute of Frauds to be invoked.

As noted in the opinion, under the circumstances of this case there is no occasion to treat the fact that Bee Jay was the alter ego of Dolenz as a factor. What Dolenz received as consideration must be disregarded in viewing what Bee Jay received. Dolenz was not a party to this suit. There is a case pending in a trial court with Dolenz a party defendant, presumably a defendant against whom there will be matters litigated which are either created or enhanced as the result of the judgment which Bee Jay has obtained.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    XONU INTERCONTINENTAL INDUSTRIES, Appellant, v. STAUFFER CHEMICAL COMPANY, Mathis Grain ad Elevator Corp. and Helena Chemical Company, Appellees.
    No. 1436.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1979.

      Peter G. Dorflinger, Houston, for appellant.
    F. Van Huseman, Corpus Christi, for ap-pellees.
   OPINION

NYE, Chief Justice.

This is a suit for damage to a crop. Xonu Intercontinental Industries, Inc., and T. A. Setliff, as Plaintiffs, sued Stauffer Chemical Company, Mathis Grain and Elevator Corporation, and Helena Chemical Company, (Defendants), to recover damages to their crop. This suit was based on theories of products liability, warranty, negligence, and deceptive trade practices. Trial was to a jury. After plaintiffs had rested, the defendants moved for instructed verdict. As to the cause of action asserted by plaintiff Xonu, the motions were granted. But, as to the cause of action asserted by the plaintiff Setliff, the motions were denied. Plaintiff Setliff and defendant Stauffer Chemical Company thereafter settled their controversy, and plaintiff Setliff took a non-suit as to the other defendants. Judgment was finally rendered against plaintiff Xonu, which alone has perfected its appeal to this Court.

Plaintiff Xonu planted a total of 600 acres of spinach in 1975 on its 2200 acre farm. It applied a chemical to the spinach for the control of weeds, called “RO-NEET.” In the first planting of 248 acres, weeds emerged over the entire tract. Plaintiff replanted spinach in 70 acres of the 248 acres and reapplied “RO-NEET” for weed control. Plaintiff experienced the same difficulty on the same replanted 70 acres. Plaintiff subsequently planted an additional 350 acres of spinach and applied “RO-NEET” from a separate batch of chemicals. This application was effective and controlled the weeds. Plaintiff was unable to harvest the 248 acres because of ineffective weed control.

At the close of plaintiff’s case, the trial court granted an instructed verdict in favor of defendants because plaintiff had not proved its damages to the spinach crop. In a single point of error, the plaintiff contends here that the trial court erred in granting a directed verdict in favor of the defendants because there was some evidence of damages sufficient to require the submission of the issue to the jury.

The law is, where an instructed verdict for a defendant has been granted, that an appellate court must accept as true the evidence in the record supporting plaintiff’s allegations (of damages), disregarding all evidence and inferences to the contrary. All conflicts in the evidence must be resolved in favor of the plaintiff, and all inferences from the evidence must be viewed in the light most favorable to the plaintiff’s cause of action. Constant v. Howe, 436 S.W.2d 115 (Tex.Sup.1968); Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex.Sup.1965). Where an instructed verdict has been granted because of the lack of proof as to damages, it is our duty to examine the entire statement of facts to determine if there is any evidence of probative value that would support such an issue.

The proper measure of damages to a growing crop is the market value of the crop, less the cost of harvesting and marketing. The leading case defining such rule is International & G. N. R. Co. v. Pape, 73 Tex. 501, 11 S.W. 526, 527 (Tex.Sup.1889), by the Supreme Court of Texas. The Court said:

“It seems to us that, as a general rule, the most satisfactory means of arriving at the value of a growing crop is to prove its probable yield under proper cultivation, the value of such yield when matured and ready for sale, and also the expense of such cultivation, as well as the cost of its preparation and transportation to market. The difference between the value of the probable crop in the market, and the expense of maturing, preparing, and placing it there, will in most cases give the value of the growing crop with as much certainty as can be attained by any other method.”

Following the foregoing rules, we find in the record that the number of acres damaged by the “RO-NEET” chemical application was 248 acres. There was competent evidence that the probable yield was between five and six tons of spinach per acre. Plaintiff also introduced evidence that it had a contract with Steel Canning Company of Springdale, Arkansas, for $70.00 per ton for the spinach. This established the amount and value of the yield when the crop matured. The appellees contend, however, that there was no evidence of the cost of harvesting and marketing the crop. Specifically, there was no evidence of the: expense of cultivation, cost of preparing the soil, cost of planting the crop, cost of harvesting the spinach, expense in finishing the crop, and the cost of getting the crop to the market. The appellees say this is similar to the International & G. N. R. Co. v. Pape, supra, where Justice Gaines stated:

“But proof of the additional amount of cotton which the plaintiff would have made but for the overflow, and the value of such cotton when ready for market, without evidence as to the expense of cultivating, gathering, preparing it (the crop) for and placing it in market, did not show the value of the crop at the time of the injury, and hence did not afford the proper means of increasing the plaintiff’s damage. The testimony, without the additional evidence of the expense of maturing the cotton and placing it in market, should have been excluded.”

The appellant, on the other hand, asserts that it proved such costs by two methods. First, it claims that its bookkeeper, Mr. Hollon, produced some evidence from the following question and answer:

Q: All right. At the time, Mr. Hollon, did you make a computation as to what the average cost per acre of putting the spinach crop was in the two hundred forty-eight acres that we’re talking about in this lawsuit?
A: We come up with $214.59.

We hold that this single statement is insufficient to prove the cost of harvesting and marketing the crop. Xonu conceded as much, when their attorney stated in its brief, “. . . admittedly there is no direct evidence in the record as to plaintiff’s cost of harvesting the spinach.” Witness Hollon did not testify as to the cost of producing the crop, and did not estimate the cost of finishing it, either. He admitted that he had had no farming experience and was not familiar with farming operations. The information he used as background for his statement, “We come up with $214.59,” was from the bank stubs in the checkbook that he supervised issuing and signing. As bookkeeper, Hollon testified that Xonu farmed in excess of 2200 acres, and that the expense of farming such acreage exceeded the sum of $200,000 in the year 1975. He made no further explanation of how he arrived at the figure of $214.59, which he said was the average cost per acre of “putting the spinach crop” on the 248 acres. There was no specific evidence of the cost per acre of producing the spinach crop.

Hollon’s testimony has no probative value for another reason. It was hearsay. As such, it would not support a jury finding. Compare Griggs Furniture Co. v. Bufkin, 348 S.W.2d 867 (Tex.Civ.App.—Amarillo 1961, writ ref’d, n. r. e.); Wood v. Self, 362 S.W.2d 188 (Tex.Civ.App.—Dallas 1962, no writ); Blume v. Weaver, 412 S.W.2d 760 (Tex.Civ.App.—Eastland 1967, no writ); Lubbering v. Ellison, 342 S.W.2d 796 (Tex.Civ.App.—San Antonio 1961, no writ); Merrill v. Tropoli, 414 S.W.2d 474 (Tex.Civ.App.—Waco 1967, no writ).

Summaries of business records are also inadmissible as hearsay, where no proper predicate has been laid. This is so when the matters set forth in the writings were not shown to be within the knowledge of the witness. Jackson v. Fontaine Clinics, Inc., 499 S.W.2d 87 (Tex.Sup.1976); Black Lake Pipe Line Co. v. Union Const. Co., 538 S.W.2d 80 (Tex.Sup.1976); Heard v. Howard, 215 S.W.2d 364 (Tex.Civ.App.—Fort Worth 1948, no writ).

There was no evidence that the check stubs were summaries of the business records of Xonu since they were not offered or introduced as business records. Appellant Xonu did not attempt to prove the records under the provisions of Tex.Rev.Civ.Stat. Ann. art. 3737.

Xonu had commercially farmed spinach crops for seven previous years. It harvested 350 acres, unaffected by chemical damage, in 1975. This was the same crop year as the year in question. There was no question that they had available precise figures as to the cost of harvesting and marketing. It seems to us they could have supplied the missing elements of their damages had they chosen to do so. Here, they offered no evidence whatsoever as to the estimated cost of harvesting, marketing, or other actual expenses relevant to cultivation and growing of the spinach.

Next, plaintiff Xonu claims that its co-plaintiff, Ronnie Setliff, proved not only his damages, but plaintiff Xonu’s damages as well. Plaintiff Xonu contends that admissible testimony as to the probable yield on Setliff’s adjoining land, with a showing that the conditions surrounding the two tracts of land and the two crops were similar, would be some evidence to raise an issue of damages sufficient to go to the jury, citing Lone Star Canal Co. v. Broussard, 176 S.W. 649 (Tex.Civ.App.—Galveston 1915, writ dism’d). We agree that this would be true if the conditions surrounding the two tracts and crops were similar. The evidence showed that Setliff and Xonu farmed bordering tracts. Xonu purchased its fertilizer, tractor fuel, seed, herbicide, and other materials necessary for farming in the same general area and market as Setliff.

However, the record affirmatively shows the dissimilarities between the two tracts and the two crops to such an extent that Setliff’s evidence had no probative value as to Xonu’s damage. The record shows that the soil on the two farms was different. The equipment used (age and type) was different. The costs of operating the equipment and the cultivation techniques used by the two farming operations were different. The crops on the two farms were planted at different times. The chemicals used, and the use of herbicides were not the same. Setliff’s family operation was less than one-half the size of plaintiff Xonu’s corporate operation. The yield per acre was less in Setliff’s case by approximately 28%. Xonu testified that his practice in harvesting the spinach was to use hoers to weed out the grasses that normally occur. The Setliffs testified that they would wait till the first freeze to kill the grass, rather than utilizing hoers. And finally, there was no evidence that the cost basis of Setliff’s operation was essentially similar to plaintiff Xonu’s. We conclude that Setliff’s estimate that his cost to finish his crop at $50.00 per acre had no probative value as to the cost of finishing Xonu’s crop.

In a case somewhat similar to the one before us, Justice Barrow, writing for the San Antonio Court of Civil Appeals in Lance v. City of Mission, 308 S.W.2d 546, 548 (Tex.Civ.App.—San Antonio 1957, writ ref’d n. r. e.), said:

“It is also apparent that appellant wholly failed to prove a proper measure of damages. Appellant’s evidence showed that his crops were destroyed in the field. He offered evidence of the probable yield and the value of some of his crops at the market place, some miles from the field, but offered no evidence of the cost of harvesting and marketing his crops. The measure of damages in such cases is the market value of the crops less the cost of harvesting and marketing.” Citing authorities.

The Supreme Court of Texas noted in Int’l Harvester Co. v. Kesey, 507 S.W.2d 195, 197 (Tex.Sup.1974), that “The law does not demand perfect proof of damages for crop losses but liberally permits estimates of the value and probable yield of crops, as well as the expense of cultivating and putting them on the market.” The Court went on to say, however, that: The law does require that crop losses must be established with reasonable certainty. This plaintiff Xonu failed to do.

We hold that the trial court properly instructed a verdict against plaintiff Xonu.

AFFIRMED.


author: YOUNG, Justice.

text:
    DOVER CORPORATION and J. R. Preis, d/b/a Coastal Bend Sales, Appellants, v. Sylvia PEREZ as Temporary Administratrix of the Estate of Jesse E. Perez, Deceased, Appellee.
    No. 1372.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1979.
    For Supplemental Opinion on the Filing of Remittitur Sept. 21, 1979.
    See 591 S.W.2d 547.

      J. Robert McKissick and Lee Mahoney, Corpus Christi, for appellants.
    Joseph D. Jamail, Houston, William R. Edwards, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from a suit for wrongful death brought by appellee, Sylvia Perez, individually and as temporary administra-trix of the estate of Jesse E. Perez, and as next friend of Margo Perez and Yvett Perez, against Ajax Supply Company, Central Plumbing & Heating, Inc., Jack Colmenero, d/b/a Coastal Home Designers, and appellants, Dover. Corporation and J. R. Preis, individually and d/b/a Coastal Bend Sales. Plaintiff alleged that the defendants had negligently designed, manufactured, marketed, distributed, and installed an unreasonably dangerous wall heater which gave off excessive amounts of carbon monoxide and thereby poisoned Jesse Perez and caused his death. The jury found that Sylvia Perez should recover $650,000.00 for the wrongful death of her husband, and that her daughters, Margo and Yvett, should recover $150,000.00 each. The award was made jointly and severally against Dover Corporation and J. R. Preis, individually and d/b/a Coastal Bend Sales. All other defendants were found to be without liability. Motions for instructed verdict and motions for new trial of Dover and Preis were denied and this appeal followed. The primary questions to be decided in this appeal concern the causal connection between Dover’s design and marketing of the heaters and the death of Jesse Perez, improper jury argument, failure to grant a continuance and excessiveness of damages.

The record indicates the following facts and circumstances. On January 13, 1975, Jesse Perez died as a result of carbon monoxide poisoning caused by the wall heater installed in his first floor unit of a two story, fourteen-unit apartment complex. The apartment was owned by appellant, Preis, and the wall heater was manufactured by Dover Corporation.

Upon later inspection of the heater in question, it was discovered that a 35,000 BTU burner unit had been installed into a 25,000 BTU case or housing. The case was marketed separately from the burner unit, and a 25,000 BTU case could hold either a 25,000 BTU burner or a 35,000 BTU burner. The only markings on the heater case itself to prevent a mismatching was a yellow and red placard on the inside of the case which warned any person installing a burner to properly match a 25,000 BTU case with a 25,000 BTU burner. The placard did not warn of carbon monoxide poisoning in the event of a mismatch. The evidence was uncontradicted that whenever a 35,000 BTU burner was installed in a 25,000 BTU case, excessive and dangerous amounts of carbon monoxide would probably be given off by the gas heater.

In addition to the evidence concerning the mismatching of the case and burner, there was also extensive testimony that the heater had been improperly vented. The USA and NFPA standards and the city plumbing and building code of Corpus Christi both required that a heater of this nature be vented straight up from the unit through the roof. The instructions which accompanied the heater also recommended this manner of venting. One of Preis’ employees vented the heater vertically only a few feet, however, and then vented it horizontally out through the wall.

In answer to special issues the jury found that a 35,000 BTU burner was installed in a' 25,000 case which was manufactured by appellant Dover; that the failure of Dover to protect mechanically against the use of a 35,000 BTU burner in a 25,000 BTU case caused the product to be unreasonably dangerous and was a producing cause of Perez’ death.

In addition, the jury found that the failure of appellant Preis, the owner and builder of the apartment, to comply with the city code provisions with respect to the installation of the venting system of the heater was a proximate cause of Perez’ death; that the venting system was installed at the direction of Preis or one of his employees; that the wall heater and venting system were installed in a negligent manner which was a proximate cause of Perez’ death; that a reasonably prudent person using ordinary care would not have installed or maintained a 35,000 BTU burner in a 25,000 BTU case and that such installation or maintenance was a proximate cause of Perez’ death; and that the heater was not maintained by Preis in the manner that an ordinary person exercising ordinary care would have maintained it, which also was a proximate cause of Perez’ death. Preis does not challenge these findings of negligence and proximate cause in this appeal nor does Dover challenge the findings that it produced and marketed an unreasonably dangerous product.

Dover brings 27 points of error and Preis brings 24 points of error. Dover’s points 15 through 24 contend there is both legally and factually insufficient evidence to support the jury’s findings that the defective design and inadequate warnings were both producing causes of the death. Basically, Dover contends that the negligence of Preis’ employees was the sole producing cause of the death or that this negligence was a new and independent cause of the death. We disagree.

Producing cause is defined in various ways. In the present case the trial court defined producing cause as follows:

“By the term ‘Producing Cause’ is meant an efficient, exciting, or contributing cause, which, in a natural and continuous sequence, caused in whole or in part the death of Jesse Perez. There can be more than one producing cause, but there can only be one sole producing cause.”

In General Motors Corp. v. Hopkins, 548 S.W.2d 344, 351 (Tex.Sup.1977), the Court noted the definition that the trial court in that case used, and that definition of producing cause is substantially the same definition as above with the added requirement in Hopkins that “but for the said cause the occurrence or injuries would not have occurred.” Compare Jones v. Traders & General Ins. Co., 140 Tex. 599, 169 S.W.2d 160, 162 (Tex.Comm’n App.1943, opinion adopted).

Dover initially points to expert testimony that even with a mismatched burner and case, a proper vent would have prevented any harm. Dover then concludes that but for the improper venting, Perez would not have died; and, thus, the negligent venting was the sole producing cause of death.

There may be more than one producing cause of any injury, though. General Motors Corp. v. Hopkins, supra. And, testimony in this case is abundant that all of the 25,000 BTU Dover heaters in the thirteen other apartments contained properly matched burners and cases, but were improperly vented in the same manner and, similar to the heater in Perez’ apartment, had received no maintenance since installation. There were other people in those apartments, but there were no reported deaths of any of them. There was no testimony of any other resident having ill effects in the other apartments, and Preis testified that the heater in Perez’ apartment was the only heater in his apartments which had malfunctioned. Consequently, the effects of the mismatched case and burner were necessary components of Perez’ death and we can assume that had Dover properly warned of such dangers, or had designed the product so as to prevent a mismatching, that the mismatching would not have occurred and Perez probably would not have died. Technical Chemical Company v. Jacobs, 480 S.W.2d 602, 606 (Tex.Sup.1972). It was the combination of the mismatched burner and case and improper venting which caused Perez’ death. Where several causes producing harm are concurrent and each is an efficient cause without which the injury would not have happened, then the injury may be attributed to all or any of the causes. See South Austin Drive-In Theater v. Thomison, 421 S.W.2d 933, 952 (Tex.Civ.App.—Austin 1967, writ ref’d, n. r. e.). Dover’s arguments concerning sole producing cause are overruled.

Dover then argues that the evidence is conclusive that improper venting and maintenance was a new and independent cause of the death, breaking the causal connection between the mismatched components and the death.

In contravention to this position, we first note that there was some evidence that even if the heater had been properly vented, a mismatched burner and case could be dangerous to the occupant.

Secondly, we note that new and independent cause is not an issue to be submitted to the jury, but is an element to be considered by the jury in determining the existence of producing cause. Compare Dallas Railway & Terminal Company v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 383 (1952), Pioneer Natural Gas Co. v. Caraway, 562 S.W.2d 284 (Tex.Civ.App.—Eastland 1978, writ ref’d, n. r. e.). In a products liability case, whether an intervening act will constitute a new and independent cause is generally a question of foreseeability. 1 L. Frumer and N. Friedman, Products Liability § 11.04[1] (1975); Griggs v. Firestone Tire and Rubber Company, 513 F.2d 851 (8th Cir. 1975). See also General Motors Corp. v. Hopkins, supra; C. A. Hoover and Son v. O. M. Franklin Serum Company, 444 S.W.2d 596, 598 (Tex.Sup.1969); 72 C.J.S. Supp. Products Liability §§ 30-32 (1975). In this regard appellant is asserting, in effect, that Dover could not have foreseen that Preis would improperly vent and maintain the heater.

At trial, Dover’s expert testified Dover could not have foreseen or anticipated that someone would improperly install one of its heaters. He then stated, however, that some units probably are improperly installed. He also stated that Dover knew that mismatched components could cause many problems. Dover’s expert also related that the primary reason for proper adjustment and proper venting was the prevention of the escape of carbon monoxide. He then explained that as Dover’s design engineer, he tries to prevent too much carbon monoxide from accumulating and that every unit should have instructions, which are in essence a warning, to properly vent the heaters. We hold that the above testimony constituted legally and factually sufficient evidence that Dover could have foreseen that a heater would at some time be improperly vented and maintained. Dover’s contentions as to new and independent cause are therefore overruled. Dover’s points 15 through 24 are overruled.

Dover’s points 25 and 26 complain that the trial court abused its discretion in ordering this case to trial on January 23,1978, in the absence of Dover’s attorney of record, Mr. Lev Hunt, and in not allowing another attorney in Mr. Hunt’s firm time to prepare for trial. The evidence shows that this case was filed on October 3, 1975. A pretrial conference was held October 28, 1976, and at that time a docket control order was entered with the consent of Dover’s counsel setting the trial for January 16,1978, a year and a quarter later. This order, signed by Mr. Hunt, stated, “At the time of this order we have no conflict in our schedules.”

On December 29, 1977, two and one-half weeks before the setting, Mr. Hunt advised the court and opposing counsel that he would begin trial in LaSalle County on January 9, 1978, and that it was possible that the trial would continue over into the week of January 16, 1978.

On January 12, 1978, Mr. McKissick, a member of Mr. Hunt’s law firm, filed a motion for continuance stating that Mr. Hunt’s trial would continue through the week of the setting of the present case (January 16, 1978).

On Monday, January 16, 1978, this case was called for trial and Mr. McKissick announced that Dover was not ready for trial because of Mr. Hunt’s absence. The court, after considering, among other things, the numerous parties in the case and out of state witnesses, set the case for Wednesday, January 18,1978. On January 18,1978, Mr. McKissick filed another motion for continuance which was partially granted, and the case was set for the following Monday, January 23, 1978. The trial court noted that a firm the size of the one to which Mr. Hunt and Mr. McKissick belonged “had adequate time to be ready for trial on this case, knowing that it had been set for a year, and knowing about the case [Mr. Hunt was] involved in up in [LaSalle County] for quite some time.” The court then recognized Mr. McKissick as a “very competent lawyer who would do a good job.”

Finally, Judge Harville, who heard these motions for continuance, told the parties that if there was still a problem with proceeding to trial on January 23, 1978, that they should take it up with Judge Wade, who would be trying the case.

No additional motion for continuance was filed after January 18, 1978, and no matter of continuance was presented to Judge Wade. Indeed, on January 23, 1978, all parties announced ready for trial. Dover was represented by two lawyers from Mr. Hunt’s firm, Mr. McKissick and Mr. Mahaf-fey.

Rule 253, T.R.C.P., places the ruling on a motion for continuance based on the absence of counsel within the discretion of the trial court, and the ruling of the motion will be reversed only upon a showing of abuse of the court’s discretion. Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.Sup.1963).

In Traders & General Ins. Co. v. Gray, 257 S.W.2d 327, 329 (Tex.Civ.App.—Waco 1953, no writ), the Court explained the policy with regard to the denial of a continuance based upon the absence of counsel:

“. . . [N]o abuse of discretion is shown in the denial of a continuance based upon the absence of counsel, where another attorney represented the complaining party at the trial of the case and there is nothing to indicate that the complaining party was deprived of any defense by the absence of the original attorney or that it was not ably and fully represented by the attorney who tried the case.”

We find Dover was represented by able counsel in this case and after reading the entire record find that Dover was not deprived of an adequate defense. Moreover, we note as did the trial court, that had counsel in Mr. Hunt’s firm begun preparing for this case when Mr. Hunt advised the court and parties of the possible conflict by letter dated December 29, 1977, then they would have had over three weeks to prepare for trial. Compare Kegans v. Williams, 214 S.W.2d 799 (Tex.Civ.App.—Eastland 1948, writ ref’d n. r. e.). Dover’s points 25 and 26 are overruled.

Dover’s point 27 and Preis’ points 20 through 23 claim the trial court erred in entering judgment for appellee because of improper jury argument by appellee’s attorney. During jury argument, appellee’s counsel stated:

“Don’t you know something else, if they had one whit even could hint that somebody knew something bad about Sylvia Perez, they would have drug it before you like a dirty sheet you would have seen it. If they could have reputed this in any way, they would have had it here. They have all the resources to do it with. But no, you saw nothing. This is the evidence. Speculation? It would be speculative not to do this. . . . you heard the only evidence of this court — if they had any evidence that Jesse Perez was a philanderer, wouldn’t they have brought it? They brought you the divorce. Or is that she was a bad woman, wouldn’t you have seen it?”

Both Dover and Preis claim these were statements unsupported by any evidence that inflamed the jury. In Standard Fire Insurance Company v. Reese, 584 S.W.2d 835, 839 (Tex.Sup.1979) the Court fully discussed the area of improper jury arguments. There it stated:

“In the case of improper jury argument, the complainant must prove a number of things. He has the burden to prove (1) an error (2) that was not invited or provoked, (3) that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial, and (4) was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge. 3 McDonald, Texas Civil Practice * 13.-17.2 (1970). There are only rare instances of incurable harm from improper argument. The complainant has the further burden to prove (5) that the argument by its nature, degree and extent constituted reversibly harmful error. How long the argument continued, whether it was repeated or abandoned and whether there was cumulative error are proper inquiries. All of the evidence must be closely examined to determine (6) the argument’s probable effect on a material finding. (7) Importantly, a reversal must come from an evaluation of the whole case, which begins with the voir dire and ends with the closing argument. The record may show that the cause is weak, strong, or very close. From all of these factors, the complainant must show that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence.”

Jury argument is generally limited to a discussion of the evidence and to the deductions and inferences therefrom as related to the court’s charge and any preceding argument of opposing counsel. 3 McDonald, Texas Civil Practice sec. 18.05.2 (1970). In the present case, there was no testimony one way or the other concerning the “goodness” of Sylvia Perez, or the issue of whether or not Jesse Perez was a “philanderer.” The appellee was obviously attempting to press an inference out of the fact that nothing was presented by Dover or Preis in this regard. However, in order for this to be proper, there should be some evidence in the record that Dover had access to or was in control of information it had not presented. Texas Power & Light Co. v. Walker, 559 S.W.2d 403, 406 (Tex.Civ.App.—Texarkana 1977, no writ); 3 McDonald, Texas Civil Practice sec. 13.06 (1970); compare J. C. Penney Company v. Duran, 479 S.W.2d 374, 381 (Tex.Civ.App.—San Antonio 1972, writ ref’d, n. r. e.). Thus, appellee’s counsel was in error making these comments. We also find no evidence that these comments were invited or provoked.

But, as to the third and fourth elements, there was no objection by any of the parties to these arguments, and we hold they were curable. Appellants strongly argue the incurable nature of these arguments such that a prompt withdrawal of the statements or a reprimand by the judge would have been useless. We disagree. As shown above, in Standard Fire Insurance Company v. Reese, supra at 839, the Court stated that there are only rare instances of incurable harm from improper jury argument; e. g., appealing to racial prejudice; calling someone a “liar”, “fraud” and the like; or by making an unsupported charge of perjury. We find the challenged argument herein does not come within the severity of these prejudicial statements and was not incurable. After considering all the evidence and the above considerations, we find the argument was curable and that therefore appellants’ failure to object waived any error that might have arisen by this argument. Compare Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054 (1940). We also find that the error was harmless under Rule 434, T.R.C.P. Dover’s point 27 and Preis’ points 20 to 23 are overruled.

Preis’ point 24 claims the trial court erred in entering judgment for appellee because of improper jury argument concerning another matter. Prior to the trial, during voir dire examination of the jury panel, counsel for Central Plumbing & Heating Company stated:

“But there is a man, I am told this morning, after all the years and most of the discovery that we have been through, named unlikely enough Ernest Breaux, who I am told by Mr. Preis’ lawyer, he doesn’t know how I can get ahold of him or where he is, and I presume he is in Louisiana, but — ”

Objection was made to this statement and the objection was sustained by the Court. However, the same counsel later again stated:

“Let me put it to you this way, if the gentleman had some evidence at all that my client put those heaters in don’t you know he would have had it down here.” At this point a motion for mistrial based upon the statement by counsel in violation of the instructions of the court was made and was overruled by the Court.

There was no evidence that Preis had access to a witness named Breaux or that Breaux possessed further testimony concerning who had installed the heater in question. This argument only served to strengthen Central Plumbing & Heating’s argument that it was one of Preis’ employees rather than Central Plumbing & Heating’s employees that installed the heater in question. There was abundant and persuasive evidence at trial that Central Plumbing & Heating’s employees had not installed the heater, and thus, the inference being drawn here was only cumulative of prior evidence and was harmless. We find the verdict was grounded on proper evidence. See Standard Fire Insurance Company v. Reese, supra at 839. Preis’ point 24 is overruled.

Dover’s points 1 through 14 and Preis’ points 1 through 19 challenge the legal and factual sufficiency of the evidence to support the judgment of $650,000.00 for Mrs. Perez and $150,000.00 each for Margo and Yvett Perez for a total of $950,000.00. In this connection, both appellants ask for a remittitur.

In J. A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728, 744 (Tex.Civ.App.—Amarillo 1967, writ ref’d, n. r. e.), we find the following appropriate guidelines:

“In a wrongful death case the amount of damages to which the beneficiaries are entitled is primarily and peculiarly within the province of the jury; and in the absence of a showing that passion, prejudice or other improper matters influenced the jury, the amount assessed by them will not be set aside as excessive.”

But where the amount is so excessive as to shock a sense of justice in the minds of the appellate court, the verdict will be found to be excessive. Main Bank & Trust v. York, 498 S.W.2d 953, 955 (Tex.Civ.App.—San Antonio 1973, writ ref’d, n. r. e.).

Many rules pertain to the jury’s computation of damages, some of which follow. As stated in the charge to the jury in the present case, compensable elements to be considered for a wife losing a husband are not only the future pecuniary loss but also intangibles such as loss of care, maintenance, support, services, advice and counsel. Compare Halliburton Company v. Olivas, 517 S.W.2d 349 (Tex.Civ.App.—El Paso 1974, no writ); Texas Consolidated Transportation Co. v. Eubanks, 340 S.W.2d 830 (Tex.Civ.App.—Waco 1960, writ ref’d, n. r. e.). As stated in the charge to the jury concerning the minors, the education the minors would have received from the deceased parent, as well as the elements above set out for the widow may be considered. Furthermore, the jury may consider the rapid devaluation of the value of the dollar and it is not bound by mortality tables. Roberts v. Tatum, 575 S.W.2d 138 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d, n. r. e.). The present value of future earnings is one proper method of valuing the pecuniary loss to the beneficiaries. Texas Consolidated Transportation Co. v. Eubanks, supra; 17 Tex.Jur.2d, Death by Wrongful Act, § 44 (1960). Finally, in a case such as this, the reviewing court must first review all of the evidence, and view it in a light most favorable to the award. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Wharf Cat, Inc. v. Cole, 567 S.W.2d 228 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.); Bell Aerospace Corporation v. Anderson, 478 S.W.2d 191, 201 (Tex.Civ.App.—El Paso 1972, writ ref’d n. r. e.).

Texas courts have sometimes followed two approaches in determining excessive damages; namely, looking to precedent from other cases and secondly, looking to the facts and circumstances of each case. Halliburton Company v. Olivas, supra. In Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122 (Tex.Civ.App.—Tyler 1977, writ ref’d, n. r. e.), the court cited the Halliburton case and the two methods above mentioned. The court explained that the practice of comparing awards in other cases was unsatisfactory to it because of the factual differences in the cases and also because of the continued erosion of the value of the dollar. It preferred the “particular case” approach “inadequate as it is.” In light of the rapid inflation being experienced today we also tend to follow the Best decision, but will not ignore the instructive value of damage awards in other cases.

We will first review the potential pecuniary loss realized by the Perez family. At the time of his death, Perez was 28 years old and was holding a regular, full time job with the Corpus Christi Independent School District as a supervisor for the reading material center earning about $600.00 a month, and was supplementing his income working about three nights a week as a musician in a local orchestra. He was earning about $75.00 a week at this job. There is no evidence concerning Mr. Perez’ prior work history or income, and as far as his potential for future advances was concerned, the only evidence was by Mrs. Perez when she stated that she expected that he would get raises. The evidence, viewing it most favorably to the jury’s award, would justify the conclusion that Jesse Perez was making $11,100.00 per year at the time of his death. The evidence also shows that he spent only $50.00 per month on himself. This would leave a remainder for his wife and children of $10,500.00 per year.

The evidence shows that a male the age of Jesse Perez had a life expectancy of 44 years at the time of his death. The testimony was unclear, though, as to Jesse’s work life expectancy. The parties stipulated at trial as follows:

“Mr. Jamail: We have a further stipulation, your Honor, regarding the lost earnings sustained by the family—
******
Mr. Jamail: It is stipulated and agreed that if an economist were called to testify, it would be his testimony that the earnings of a person earning $7,000 a year with a work life expectancy of 38 years, would have a present cash value, today’s market, of $325,000.” (Emphasis supplied).

This was the only testimony which even remotely concerned Jesse Perez’ work life expectancy and the jury could have inferred that the person referred to in the stipulation was Jesse Perez; however, that is not certain. Also noteworthy about the stipulation is the fact that the person in the stipulation was said to be earning $7,000.00 per year, whereas the testimony in this case shows that the funds apparently available to Perez’ wife and children were $10,500.00 per year; i. e., one and one-half times the income in the stipulation.

It is not clear what portion of the jury’s $950,000.00 award might have represented loss of future earnings. The reason for this confusion follows from the lack of any discussion in the parties’ stipulation concerning the effects of inflation or possible wage increases on the present cash value of the amount stipulated. Indeed, the entire record is void of any evidence concerning inflation or how it would affect the damages herein.

Concerning the award for intangibles such as care, maintenance, support, services, advice, counsel, and education, the record presents the following facts. Sylvia and Jesse Perez met after their last year of high school, dated for three years and married in 1968. At the time of Jesse’s death they had been married approximately seven years. Their two daughters, Margo and Yvett, were ages four and six respectively at the time of trial, 1978. The couple was buying and furnishing a home on which Jesse was making the payments. The evidence indicates that Mr. Perez handled the financial affairs for the family. The evidence also indicates that they were a close family and that Jesse wanted a better life for his family than he had known, “So he did everything for his girls.” Mrs. Perez also testified that Jesse was a good father, that he helped raise the girls and that he was very interested in them. She also stated that the only thing wrong with Jesse was his jealousy.

Because of this jealousy, Sylvia Perez had filed a divorce suit in November of 1974. Jesse’s sister testified without objection at trial that Jesse did not want to divorce Sylvia, that he loved his wife and daughters very much and planned to go back with his wife and family. Even during the separation, Jesse ate meals with his family every evening and spent time with his daughters every day.

Sylvia Perez also testified that she did not intend to go through with the divorce. When asked why she filed for divorce she stated that “she was so young and so foolish was her best reason.” And she stated the only reason she did it was to stop his jealousy.

In a wrongful death action the pecuniary loss calculated upon a projection into the future of the decedent’s past earnings is the primary element of such awards and the awards should bear some ascertainable relation to the pecuniary benefits which the decedent’s spouse or child might reasonably have expected to receive had the wrongful death not occurred. Halliburton Co. v. Olivas, supra, Best Steel Bldgs., Inc. v. Hardin, supra.

It is virtually impossible to establish a percentage relationship between the projected future earnings and the intangibles in this case because the jury verdict was not divided into these elements and it is very difficult to determine what the jury considered to be the projected future earnings of Jesse Perez in light of the indefinite stipulation as to present value and his expected work life. We have inspected several authorities concerning damage awards and the relationship between damages for loss of future earnings and damages for intangibles. See e. g. Halliburton Company v. Olivas, supra (and cases cited therein); Annot., 47 A.L.R.3d 909 (1973); Annot., 46 A.L.R.3d 733 (1972); Annot., 46 A.L.R.3d 680 (1972).

All of which brings us to the following conclusions. Considering all of the evidence in the light most favorable to the jury award we reach the conclusion that the jury’s total verdict is not supported by sufficient evidence to stand. We believe that the award as to the widow was arrived at by some improper motive such as passion, prejudice or speculation and that the award is excessive. After careful consideration by each member of this Court of the law and evidence in this case, we have determined that the verdict in the total amount of $650,000.00 for the pecuniary losses suffered by the widow is excessive in the sum of $350,000.00. Although the award to the children of the deceased father is high, we hold that it is not excessive under the facts of this case. But, because we have found no other error in the record which requires reversal, it is our duty to suggest a remitti-tur and the time within which it may be filed. Rule 440, T.R.C.P. The judgment of the trial court therefore will be affirmed if the appellee will file in this Court within fifteen days hereof a remittitur in writing of $350,000.00 as herein directed, otherwise such judgment will be reversed and the cause remanded for a new trial. We order that the remittitur be filed by the plaintiff, Sylvia Perez, solely out of the $650,000.00 awarded to her individually.

The judgment of the trial court is affirmed on condition of remittitur.


author: OSBORN, Justice.

text:
    Margaret B. TRICK, Appellant, v. Lorence W. TRICK Appellee.
    No. 6871.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 5, 1979.
    Rehearing Denied Oct. 17, 1979.
    Daniel R. Rutherford, San Antonio, for appellant.
    Gary D. Howard, San Antonio, for appel-lee.
   OPINION

OSBORN, Justice.

This divorce case involves a division of the community property and primarily relates to the issue of value of stock in a medical professional association. We affirm the judgment of the trial Court.

These parties were married in June, 1967, just after Dr. Trick graduated from medical school. He spent the next eight years in the Air Force working as a medical doctor, and during that time did his orthopaedic residency. In July, 1975, he began private practice with the San Antonio Orthopaedic Group, P.A. At that time, there were four other physicians in the Group. A year later, he signed an employment contract and stock purchase agreement with the right to purchase one-fifth of the stock of the Association over a five-year period at a total cost of approximately $80,000.00. At the time of trial, he had paid approximately $32,000.00 on this commitment and received approximately eight percent of the stock of the Association. The Association had a stock redemption agreement with all of the doctors in the Association, which provided that in the event any doctor left the Group his stock was to be repurchased at a price to be determined by a formula provided in the agreement. That formula provided that the value of the stock should be the capital and surplus of the Group plus the full amount of all accounts receivable, less a five percent collection discount, less a reserve for uncollectible or doubtful accounts, less accounts payable by the Group, less a provision for income tax to be paid by the Group plus an allowance of ten percent of the sum of the above items as good will. Based upon that formula, the evidence at trial indicated the value of each share of stock in the Association was $17.86. The jury found the value of the parties’ 1,141.5 shares of stock to be $37,852.14. They found the value of the right to acquire an additional 1,594.5 shares of stock to be “0.”

The Court divided all of the community property and included in the sum awarded to the wife the sum of $20,000.00 for her interest in the stock of San Antonio Ortho-paedic Group, P.A.

By her first three points of error, the Appellant complains of the trial Court’s refusal to permit Eugene P. Cagle to testify as an expert witness. By this witness, the Appellant offered to prove that the value of the parties’ stock in the Association was $1,040,000.00. Mr. Cagle graduated from high school, and attended Southwestern Graduate School of Banking at S.M.U., but he does not have a college degree. He had been employed as a vice president of the American National Bank in Austin and as a vice president by First National Bank of San Antonio. For about six months he was president of Security Bank of Ridge Hill, Missouri. He was in the banking business approximately twenty years. In 1974, he became a wholesale distributor of copying machines. In November of that year, he attempted to set up a joint venture in agriculture in Iran, but it has never been completed. He now serves as a vice president and general manager of a chemical company-

When the witness was taken on voir dire examination as to his qualifications, he said that he did not belong to any professional organizations or societies, he is not an accountant, and does not subscribe to any trade publications. With regard to evaluating stock of a professional corporation, his testimony was as follows:

Q Have you had any other experience as far as going in and valuating a professional association as to the value of their stock?
A Well, by the methods — I personally have not done that, but these are acceptable methods for the valuation.
Q But you yourself have never done it?
A No.
Q And have you ever done it for a set of attorneys?
A No.
Q And you told me before you have never come into court, never testified in any kind of a case; is that true?
A That’s correct. Well, let me clarify this. As a quote expert witness?
Q Yes.
A Correct.

While he had as a banker made loans to many companies, he readily acknowledged that “you don’t value the stock in each one of those companies in arriving at whether or not to extend credit.” He also testified:

Q Are you familiar with the income tax code and the laws that are applied to professional corporations and associations?
A Not particularly, no.
Q And you never before valued a professional association as to stock; is that correct?
A No.

The general rule with regard to qualifications of an expert witness is set forth in 2 McCormick & Ray, Texas Law of Evidence, Sec. 1401 (1956), as follows:

Since his testimony is received on the theory that he possesses a knowledge or skill not had by people generally, his qualification must affirmatively appear before his opinion will be received. The burden of establishing his qualification naturally rests upon the party offering the alleged expert. Whether the person offered possesses the required qualification is a preliminary question to be determined by the trial judge and should not be left to the jury. In the decision of this question our courts have wisely held that the trial judge has a wide discretion not subject to review in the absence of clear abuse, (footnotes omitted)

That same section of the text goes on to say: “The person offered must possess special knowledge as to the very matter on which he proposes to give an opinion.”

In Wilson v. Scott, 412 S.W.2d 299 (Tex. 1967), the Court, in an opinion by Justice Pope, considered a trial court’s ruling that a medical doctor was not qualified to express an opinion in a medical malpractice case. The Court found no error in excluding the testimony and, in doing so, noted that the doctor was no longer a practicing physician, but was engaged in business and that he had no special knowledge in the particular area of medicine involved in that case. In Loyd v. Rumbaugh Trucking Company, 313 S.W.2d 542 (Tex.Civ.App.—El Paso 1958, writ ref’d n.r.e.), this Court upheld the exclusion of testimony of witnesses offered as expert truck drivers, where they had not driven the type of truck involved in an accident in that case. The same result was reached by the Court in an opinion by Justice Norvell in Union Bus Lines v. Moulder, 180 S.W.2d 509 (Tex.Civ.App.—San Antonio 1944, no writ), where the witness did not use any technical or scientific methods in arriving at his opinion as to the speed of a vehicle.

We find no abuse of discretion in excluding the testimony of this witness. There was no error in denying counsel the right to further qualify the witness. He never evaluated stock of a professional corporation in twenty years of banking business. He had been out of that business for four years. He had no expertise for making such an evaluation and had never performed such a service before. Before a court may permit evidence from an expert, the judge must be satisfied that the witness has specific qualifications not possessed by the jury, which can aid them in their determination of an issue before them. The trial Court properly concluded this witness did not have such qualifications. Points of Error Nos. 1, 2, and 3 are overruled.

The next point asserts the trial Court erred in entering judgment without taking into consideration all relevant interest in reaching an equitable division of the community property. The Appellant cites two cases and relies primarily upon next to the last paragraph of the opinion in Nail v. Nail, 486 S.W.2d 761 (Tex.1972), and the holding in Geesbreght v. Geesbreght, 570 S.W.2d 427 (Tex.Civ.App.—Fort Worth 1978, writ dism’d), for his contention that in considering the value of stock in a professional association the value of good will must be considered. In the Nail case, the Court held that accrued good will of a husband’s medical practice did not constitute property subject to division upon divorce as part of the estate of the husband and wife. At the end of that opinion, the Court specifically noted that it was not concerned with good will as an asset instant to the sale of a professional practice or that may exist in a professional association or corporation apart from the person of an individual member. In the Geesbreght case, the Court was involved with the value of stock in a medical professional association and the Court reached the conclusion that good will was a part of the relevant property interest in the stock owned by the parties in the divorce case.

We conclude that the trial Court followed the holdings in the above cases, and evidence was received in this case as to good will as an element of value of the stock of the professional association. Of the total value attributed to the value of the stock of the Group, more than $22,-000.00 was allocated to good will. Therefore, we hold that the trial Court did consider this relevant interest in reaching an equitable division of the community property, and Point of Error No. 4 is overruled,

The last point asserts error in denying respondent’s motion for sanctions and in the alternative for a continuance because she was put to trial at a time when she was not prepared to meet the evidence offered by the Appellee. The record reflects that on May 24,1978, the Court entered an order directing that the Appellee forthwith deliver to the accountant for the Appellant certain portions of the 1976 and 1977 tax returns of the San Antonio Orthopaedic Group, P.A., including schedules showing the balance sheet of the corporation at the beginning and ending of those years and schedules showing the profit or loss operating statement for those years. In that same order, the Court set the case for trial on June 12, 1978. As shown by a receipt in the record, the financial information was delivered on June 8,1978. The case actually commenced on June 14, 1978, and, before any evidence was heard, the Appellant urged the motion for sanctions and urged the trial Court to refuse to allow the Appel-lee the right to oppose Appellant’s evidence as to the fair market value of the stock owned by the parties in said San Antonio Orthopaedic Group, and refuse to allow Ap-pellee the right to offer any evidence showing the book value of such stock, and to refuse to allow Appellee the right to cross-examine any of petitioner’s witnesses on the question of the value of such stock, and to refuse to allow Appellee to in any way establish the fair market value of said stock, all as a sanction for refusing to comply with the spirit of the Court’s order of May 24, 1978. In the alternative, the Appellant sought in said motion a continuance of the case. The motion for sanctions and continuance was denied. We find no abuse of discretion upon the part of the trial Court in overruling the motion, both for sanctions and continuance. At the time the case was tried, it had been on the Court’s docket nearly seventeen months. The case had been set for trial on two prior occasions and twice the Appellant had filed motions for continuance. Interrogatories had previously been sent to the Appellee, and the deposition had been taken of the person doing the bookkeeping and tax work for the Association. At the hearing on the motion, counsel for the Appellant testified with regard thereto and acknowledged that counsel for the Appellee had offered to let him withdraw his announcement of ready and put the case off for a month, but he refused to do so. Instead, he testified as follows:

Q Now, Mr. Rutherford, are you urging this Motion for Sanctions because you’re telling the Court that you’re not ready for trial?
A No. ‘I’m ready for trial. I’ve been ready for trial. I’m ready. .
Q But you filed a Motion for Continuance, didn’t you?
A I did in the alternative. And then also, Mr. Howard, you weren’t here and present. Mr. Wilson will advise you that I waived my Motion for Continuance before the Court denied it in chambers.

We conclude the trial Court took counsel at his word when he said he was ready for trial. He having acknowledged that he waived his motion for continuance, we find no error in the trial Court overruling that motion. Point of Error No. 5 is overruled.

The judgment of the trial Court is affirmed.

      . At that time, Dr. Trick was represented by another attorney, and not the one who represented him in the trial of this case.


author: McDONALD, Chief Justice.

text:
    TEJAS TOYOTA, INC., Appellant, v. Ronald L. GRIFFIN, Appellee.
    No. 6023.
    Court of Civil Appeals of Texas, Waco.
    Sept. 13, 1979.
    Eugene J. Pitman, Paul J. McConnell, III, De Lange, Hudspeth, Pitman & Katz, Houston, for appellant.
    L. Kirk Kridner, Michael C. Neel, Neel & Gregg, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

Appellant Toyota as plaintiff sued appel-lee Griffin for $250 alleged to be balance due on an automobile purchased by Griffin from Toyota.

Griffin answered by general denial and filed cross action against Toyota under the Deceptive Trade Practices-Consumer Protection Act seeking $527.50 damages for denial of use of his automobile; $2500 damages to his credit reputation; prayed that both items be trebled ($527.50 + $2500 = $3027.50 X 3 = $9082.50); plus $1500 attorneys’ fees.

At the conclusion of the evidence Toyota filed motion to dismiss Griffin’s cross action because it sued for an amount in excess of $5000, the jurisdiction of the County Court at Law.

The trial court permitted Griffin to file a trial amendment to his cross action (which we assume was intended to plead for amounts within the jurisdiction of the court); and overruled Toyota’s motion to dismiss.

Griffin’s trial amendment to his cross action reduced the amount sought for damages to his credit reputation from $2500 to $1000, and the amount sought for attorneys’ fees from $1500 to $993. Thus, cross plaintiff Griffin still sought $527.50 + $1000 = $1527.50to be trebled equals $4582.50; plus $993 attorneys’ fees which amounts to $5575.50.

The trial court submitted issues to the jury which found:

1) Griffin does not owe Toyota the $248.30 [$250.00],
2), 3) Toyota was guilty of deceptive trade practices and/or unconscionable actions.
4) Griffin was adversely affected by such deceptive trade practices and/or unconscionable actions.
5) Awarded Griffin $1950 actual damages.
6) Awarded Griffin $1188 attorneys’ fees.

The trial court rendered judgment for cross plaintiff Griffin for $3000 plus $1188 attorneys’ fees.

Toyota appeals contending “the [trial] court erred in overruling [its] motion to dismiss the cross action, as the amount claimed in such cross action exceeded the limits of the jurisdiction of the trial court.

The trial court was created by Article 1970-110c VATS; and Article 1970a fixed the civil jurisdiction of such court “when the matter in controversy * * * shall not exceed $5000”.

Where the amount in controversy exceeds the trial court’s maximum jurisdiction any judgment rendered is void. Regian v. Sowell, Tex.Civ.App. (Waco), NWH, 534 S.W.2d 175; Williams v. Steele, Tex.Sup., 108 S.W. 155.

And the amount in controversy is the amount of damages claimed in the pleading. Gimbel v. Gomprecht, 89 Tex. 497, 35 S.W. 470.

Cross actions are treated as separate suits and must meet the same maximum jurisdictional requirements as an original action, when brought in a court of limited jurisdiction. Gimbel v. Gomprecht, Tex.Sup., supra; Commercial Inv. Trust, Inc. v. Smart, Tex.Com.App., Opinion Adopted, 67 S.W.2d 858; Bates v. Capps, Tex.Civ.App. (Houston 1) NWH, 349 S.W.2d 311; Manly v. Citizens Nat. Bank in Abilene, Tex.Civ.App. (Eastland) NWH, 110 S.W.2d 993; Pennant Oil & Gas Co. v. Lightfoot, Tex.Com.App., 292 S.W. 517; Mumme v. Spies, Tex.Civ.App. (San Antonio) 15 S.W.2d 137; Brook Mays & Co. v. Osborne, Tex.Civ.App. (Waco) NWH, 70 S.W.2d 755.

Since Griffin’s cross action as amended by the trial amendment demanded a sum in excess of the jurisdiction of the trial court, such court had no jurisdiction of such cross action.

Appellant’s contention is sustained.

The judgment is reversed and judgment here rendered dismissing the cross action.

REVERSED AND RENDERED.