author: EVANS, Justice.

text:
    DAVID A. CARL ENTERPRISES, INC., Appellant, v. CROW-SHUTT #14, Appellee.
    No. 16851.
    Court of Civil Appeals of Texas, Houston, First District.
    March 17, 1977.

      Wheat, Thornton & Wheat, Woodrow A. Holland, Joe F. Wheat, Houston, for appellant.
    Bass & Bass, Larry W. Bass, Houston, for appellee.
   EVANS, Justice.

This appeal is from an order denying the appellant’s motion for a new trial following entry of a default judgment.

Appellant’s first four points of error question the legal and factual sufficiency of the evidence to support the trial court’s findings that service on the appellant was properly effected.

The appellee’s original petition alleged that appellant could be cited by serving David A. Carl, its registered agent, and that appellant’s registered office was 5731 Gulf-ton, Houston, Harris County, Texas. The petition further alleged that service could also be accomplished by serving David A. Carl, its registered agent, at 1040 Executive Plaza East, 4615 Southwest Freeway, Houston, Harris County, Texas.

The original citation designated appellant to be a corporation and recited that service might be effected by serving David A. Carl, the appellant’s registered agent. No address for the appellant or its registered agent appears on the face of the citation, but the citation does recite that it is accompanied by a copy of the plaintiff’s original petition. The reverse side of the citation shows the printed form of the officer’s return, with only the stamped notation: “Returned unexecuted on orders of plaintiff. 5-14-76.” On that same side, above the designation of appellant’s name appears a handwritten notation “4615 S.W. Freeway 1040.” Also appearing on the reverse side of the citation is another handwritten notation “Moved 3-22-76, NA Gulfway Service Center 5903 Sovereign Dr.”

On June 7, 1976 appellee filed its first amended original petition, alleging that appellant’s registered agent could not with reasonable diligence be found at the appellant’s registered office, and suggesting that process could be served upon the Secretary of State pursuant to the provisions of Article 2.11, Texas Business Corporation Act.

When a domestic corporation fails to appoint or maintain a registered agent, or the registered agent “cannot with reasonable diligence be found at the registered office,” service of process may be effected by serving the Secretary of State. Article 2.11(B), Texas Business Corporation Act. Under this statute when service is properly effected upon the Secretary of State, he is required to cause one of the copies of the process to be forwarded by registered mail, addressed to the corporation at its registered office.

The certificate of the Secretary of State, which appears in a supplemental transcript obtained by this court on its own motion, recites that a copy of the process and petition were forwarded to “David A. Carl Enterprises, Inc. Attention ‘David A. Carl, registered agent, 5731 Gulfton, Houston, Texas’ ” and that the citation was returned bearing the notation “undeliverable as addressed, unable to forward.”

The trial court found as a fact that the appellant had designated Mr. David A. Carl as its registered agent for service of process and that 5731 Gulfton, Houston, Harris County, Texas was its registered office. It further found that said registered agent could not, with reasonable diligence, be found at the registered office of said defendant.

The trial court’s finding that the registered office of appellant was 5731 Gulfton, Houston, Harris County, Texas is determinative of that matter. Since no statement of facts was brought forward, the trial court’s findings are conclusive, and it must be presumed that the evidence was sufficient to support such findings. Vanity Fair Properties v. Billingsley, 469 S.W.2d 453, 454 (Tex.Civ.App.-San Antonio 1971, writ ref’d n.r.e.); McDonald, Texas Civil Practice, Vol. 4, section 16.10, pp. 29-30. This is true notwithstanding the unchallenged statement in appellant’s brief that the records in the office of the Secretary of State showed the registered office of appellant to be 5731 Gulfton, Apt. 71, Houston, Texas.

The trial court’s finding that the registered agent could not, with reasonable diligence, be found at the registered office of the appellant cannot, however, be deemed conclusive of that fact.

When a citation has been returned unserved, the officer’s return must itself show the diligence used by the officer to execute the citation and the cause of his failure to execute. Rule 107, Texas Rules of Civil Procedure. The original citation, including the officer’s return, is a part of the appellate record and is before this court for review. The officer’s return shows only that the citation was returned unserved; it does not show the diligence used by the officer to execute the citation or the cause of his failure to execute it.

In order to sustain a default judgment upon substituted service, there must be affirmative proof in the record that the defendant was served in the manner required by statute. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965); Whitney v. L & L Realty Corporation and Parnass v. L & L Realty Corporation, 500 S.W.2d 94 (Tex.1973). No presumption will be indulged to aid the sheriff’s return in order to support a default judgment. Tullis v. Scott, 38 Tex. 537, 540 (1873); Hanover Modular Homes of Taft, Inc. v. Corpus Christi Bank & Trust, 476 S.W.2d 97, 100 (Tex.Civ.App.-Corpus Christi 1972, no writ).

The officer’s return in the case at bar will not support a default judgment since it does not affirmatively show the diligence used by the officer in executing the citation or the cause of his failure to execute it. Hanover Modular Homes of Taft v. Corpus Christi Bank & Trust, 476 S.W.2d 97, 99 (Tex.Civ.App.-Corpus Christi 1972, no writ); Jacksboro National Bank v. Signal Oil & Gas Co., 482 S.W.2d 339 (Tex.Civ.App.-Tyler 1972, no writ). Furthermore, the notations appearing on the citation tend to show that service was attempted at 4615 Southwest Freeway, the alternative location designated in the plaintiff's petition, rather than at 5731 Gulfton, Houston, Texas, the alleged registered office of the appellant. The officer’s return on the citation does not affirmatively show that the officer properly attempted to execute the citation.

Since it is apparent from the face of the record that the officer’s return is defective and that the trial court lacked in per-sonam jurisdiction over the appellant, the entry of a default judgment based upon such citation constitutes reversible error. Rule 434, Texas Rules of Civil Procedure; Diamond Chemical Company v. Sonoco Products Co., 437 S.W.2d 307, 308 (Tex.Civ.App.-Corpus Christi 1968, no writ); Carlson Boat Works v. Hauck, 459 S.W.2d 887, 888 (Tex.Civ.App.-Houston [1st] 1970, no writ).

The trial court made a further finding that the appellant had admitted in its motion for new trial that its registered agent was not located at 5731 Gulfton, Houston, Harris County, Texas, “for a period of time prior to the attempted service of process by the Sheriff therein.” This finding is also contrary to the face of the record. In an affidavit filed in support of appellant’s motion for new trial, appellant’s president stated that he had been informed by his attorneys that appellant had been served with citation by delivering a copy of such citation to the Secretary of State, who was then to forward a copy to him, and that appellant’s address, as reflected in the files of the Secretary of State “must be in error” as he had never received a copy of the citation. This statement taken in context merely reflects the affiant’s conclusion that since he had not received a copy of the citation from the Secretary of State’s office, the official designation of the appellant’s registered office must be in error. This does not constitute an admission by the appellant that its registered agent was not located at the registered address of the corporation at the time of the attempted service of process.

In view of this court’s ruling that the trial court’s judgment must be reversed and the cause remanded for further proceedings, it is not necessary to consider the appellant’s further points that the evidence is legally and factually insufficient to support the trial court’s findings that the ap-pellee proved a valid cause of action against the appellant.

The judgment of the trial court is reversed and the cause is remanded for further proceedings.

Judgment rendered and opinion filed March 17, 1977.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    BEST STEEL BUILDINGS, INC., Appellant, v. Rosemary Jeffers HARDIN et al., Appellees.
    No. 935.
    Court of Civil Appeals of Texas, Tyler.
    March 24, 1977.
    Rehearings Denied June 9 and June 23, 1977.

      Jesse R. Pierce, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, for ap? pellant.
    Robert H. Roch, Russell L. Cook, Jr., Fisher, Roch'& Gallagher, Ronald L. Black-stock, Quinnan H. Hodges, Houston, for ap-pellees.
   MOORE, Justice.

This is a wrongful death action and property damage action arising out of an automobile-truck collision. Plaintiffs, Rosemary Jeffers Hardin and Lisa Jean Hardin by next friend, Rosemary Jeffers Hardin, Verna Jane Martin by next friend, Janie Martin Lee, M. C. Bandy, and J. H. Rose Truck-line, Inc., brought suit against defendant, Best Steel Buildings, Inc. and Nancy Smith Graham and husband, for damages arising from the death of Willard Hardin and Kenneth Martin and for property damage incurred in the collision. The Transport Insurance Company intervened for subrogation of workmen’s compensation benefits paid to the survivors of Willard Hardin and Kenneth Martin. Prior to trial, the cause of action against Nancy Smith Graham and husband was nonsuited by plaintiffs.

Trial was to a jury. In response to the special issues, the jury found that Louis Davis, an employee of Best Steel Buildings, Inc., was guilty of negligence in the operation of his automobile, such negligence having proximately caused the collision. The jury further found that this employee, Louis Davis, was acting within the course and scope of his employment for Best Steel Buildings, Inc. on the occasion in question. The jury awarded damages to the plaintiffs in the following amounts: Lisa Jean Hardin — $50,000.00; Rosemary Jeffers Hardin —$225,000.00; Verna Jane Martin — $50,-000.00; Marie Bandy Weisser — $22,400.00; J. H. Rose Truckline, Inc. — $4,554.56. After defendant Best Steel Buildings’ motion for judgment n. o. v. was denied, the trial court entered judgment on the verdict. Defendant, Best Steel Buildings, Inc., timely filed its motion for new trial and after the same was overruled, perfected this appeal. For convenience, Best Steel Buildings, Inc. will be referred to as “appellant.” The appellees will be referred to individually by name and collectively as “appellees.”

We affirm in part and conditionally affirm in part.

The collision made the basis of this suit occurred at approximately 9:00 a. m. on Monday, February 27, 1967, on a bridge on Highway 290 near Manor, Texas. At the point where the accident occurred, the highway runs generally east and west across the bridge. The bridge was 420 feet long and was composed of two lanes each of which was twelve feet in width.

Three vehicles were involved in the occurrence, two automobiles and a tractor-trailer truck. The truck was owned by J. H. Rose Truckline, Inc., and was proceeding east on Highway 290. It was being driven by Kenneth Martin and Willard Hardin was a passenger in the truck. The two automobiles were headed west. The lead automobile was a Pontiac sedan driven by Nancy Smith Graham. Following the Pontiac was a Sim-ca driven by Louis Davis. His son, James Davis, and his son’s wife were passengers in the Simca. The collision was between the truck driven by Willard Hardin and the Simca driven by Louis Davis. The point of impact was five feet south of the center line in the eastbound lane in the truck’s lane of travel. Louis Davis and Mrs. James Davis were apparently killed upon impact and Kenneth Martin and Willard Hardin were burned to death in the tractor which left the roadway and caught fire after impact. James Davis was the sole survivor from the two vehicles. The evidence shows that the Simca struck the rear of the Pontiac which had slowed to avoid hitting a dog. After striking the Pontiac the Simca, driven by Louis Davis, skidded across the center line rear-end first, causing the impact between the rear of the Simca and the left front of the truck.

At the time of the collision, Louis Davis and James Davis were returning to Austin, their place of employment, with appellant, Best Steel Products, Inc., from Houston where they had spent the night. Appellant is in the business of constructing metal buildings and at the time of the collision was building such a structure on the University of Texas campus in Austin. Louis and James Davis lived near Houston, Texas, but while engaged in the construction of the building they stayed in a motel in Austin along with James Davis’ wife. Kenneth Martin and Willard Hardin were engaged in transporting freight for their employer, J. H. Rose Truckline, Inc., at the time of the collision. Since appellant does not challenge the jury’s verdict finding that the negligence of Louis Davis, deceased, proximately caused the collision, it will not be necessary to delineate the facts showing his responsibility for the collision.

In response to the first and second special issues, the jury found: (1) that Louis Davis was within the course and scope of his employment with Best Steel Buildings, Inc. at the time of the collision; and (2) that at the time of the collision Louis Davis was operating his vehicle in furtherance of a mission for the benefit of Best Steel Buildings, Inc. and subject to the right of control by Best Steel Buildings, Inc. as to the details of the mission.

Under the first point of error appellant seeks a reversal on the ground that the court erred in admitting certain testimony. Under points two through five appellant seeks reversal on the grounds that the evidence is legally and factually insufficient to support the jury’s findings that Louis Davis was in the course and scope of his employment with appellant, Best Steel Buildings, Inc. at the time of the collision. We will discuss the “no evidence” and “insufficient evidence” points first.

Under the second and fourth points, appellant contends that the trial court erred in overruling its motion for judgment N.O.V. because there is no evidence to support Special Issues Nos. 1 and 2, finding that Louis Davis was acting in the course and scope of his employment with Best Steel Buildings, Inc. In passing on these points of error, we must consider only that evidence which is favorable to the appellees and must draw from the facts proved only those reasonable inferences which tend to support the jury’s findings and the judgment based thereon. Miller v. Riata Cadillac Co., 517 S.W.2d 773 (Tex.1974); Transport Ins. Co. v. Mabra, 487 S.W.2d 704 (Tex.1972); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Jecker v. Western Alliance Ins. Co., 369 S.W.2d 776 (Tex.1963); Dictaphone Corp. v. Torrealba, 520 S.W.2d 869 (Tex.Civ.App—Houston [14th Dist.] 1975, writ ref’d n.r.e.),

The record shows that several weeks pri- or to February 27, 1967, the date of the accident, the appellant had been erecting a steel building in Austin, Texas. Louis Davis and James Davis, as well as other members of the crew of the appellant, lived in and around Houston, Texas. After working in Austin for several weeks, they returned to Houston for a one week period because certain materials had not reached the job site. During that week in Houston they were not paid any wages.

The crew had returned to the job site in Austin about a week prior to February 27, 1967. The crew consisted of Bob Drouet, Kenneth Wright, John Pirsch, Jack Porter, James Davis and Louis Davis. Bob Drouet, age nineteen, was the foreman of the job. August Drouet, the father of Bob Drouet, was an officer and stockholder of appellant company and was supervisor of the crew. August Drouet was not present at the job site, but was in Houston.

In addition to regular pay, appellant’s building crew was paid five dollars a day as expense money which was added to the weekly pay checks. When the crew returned the week before the accident, Louis Davis had drawn some expense money in advance but James Davis testified he had no expense money with which to pay his motel bill in Austin. It is undisputed that the crew worked until the early afternoon on Sunday, the day before the accident, at which time the job was shut down. It is likewise undisputed that sometime later in the afternoon James Davis, his wife, and Louis Davis left for Houston in Louis’s Sim-ca automobile. The reason for the trip to Houston and its purpose, as well as other surrounding circumstances, can best be described by a summary of the testimony given by each of six witnesses.

James Davis testified that on Sunday afternoon, February 26, 1967, the building crew had a shortage of certain building materials, including self-tapping screws which were essential to the construction of the building. He testified that he walked up during a conversation between Louis Davis and Bob Drouet, the foreman, and heard Drouet say that he would appreciate it if Louis and he would go to Houston and pick up some items. An inventory was taken to determine what materials they were to get. It was determined that a box of blue and white self-tapping screws, a roll of chicken wire and some expense money were needed. In addition, Louis was to check about procuring some window frames. The list of items was written on a piece of cardboard box which Louis Davis carried with him to Houston. Before leaving Austin, Bob Drouet suggested that all three of them go to a filling station so that he could call his father, August Drouet, in Houston. After being unable to reach his father, Bob Drouet told them to go to Houston and he would keep trying to call his father and advise him they were coming for the supplies. James testified that but for the instructions given by Bob Drouet they would have stayed in Austin. Before leaving for Houston, they went back to the motel and picked up his wife and then embarked upon Highway 290 which was the most direct route to Houston. When they went through Waller, Texas, which is about 50 miles from Houston, Louis Davis stopped by his home and changed clothes. They then proceeded to Best Steel’s place of business in Houston, arriving there at about 6:30 p. m. After finding no one there, Louis Davis telephoned August Drouet who advised him that it would not be necessary for them to take the supplies back with them because he had already made arrangements for the supplies to be taken to Austin by truck early Monday morning. August Drouet also told them that they could drive back to Austin that night or wait until the next morning to make the trip. Although originally they had planned to return to Austin that night, after talking to August Drouet they spent the night in Houston. They left for Austin early Monday morning and were traveling on Highway 290 when the accident occurred. James Davis testified that before going to Houston, Bob Drouet was asked if he wanted them to use the company truck and bring back the window frames and he stated “No, go ahead and go in and go . . . for the expense money and self-tapping screws.” He further testified that Louis Davis would have normally been paid mileage for using his own automobile but was unable to request his mileage expense because of his death.

Mrs. Roberts, the manager of the San Jose Motel where the Davises stayed in Austin, testified that Louis Davis had told her on Sunday afternoon that he was leaving for Houston to pick up some supplies and expense money.

Bernice Robertson, the widow of Louis Davis, testified that she and Mr. Davis lived in Waller, Texas, and their daughter lived in Fairbanks, Texas, which was in the same general area. She testified that her husband had telephoned her on Saturday, February 25, 1967, and advised her that he would not be home that weekend because he had to work. The following day, February 26,1967, at about 8:30 p. m. Louis Davis arrived at his daughter’s home where she was visiting and she was surprised to see him. He told her he had been sent to Houston to get expense money, some supplies and screws. They spent the night at their daughter’s home, and he left for Austin at about 5:00 a. m. the following morning.

Kenneth Wright, a member of the work crew, testified that the crew stopped work about 2:00 or 2:30 p. m. on February 26, 1967. He testified that the crew did not have sufficient supplies to continue working. He stated that the crew was in need of a roll of chicken wire. He overheard a conversation between Louis Davis and Bob Drouet concerning the shortage of materials. In particular, he overheard Drouet and Davis determine that they needed some more self-tapping screws. He testified that he saw Bob Drouet tear a piece of cardboard from a box and write something on it. He also overheard Bob Drouet say to Louis and James Davis, “Why don’t you all go to Houston, go to the office and pick up screws, expense money.” He was not certain whether or not they were told to get a roll of chicken wire. Wright further testified that shortly after the conversations with Louis and James Davis, Bob Drouet left the job site for a while and then came back and went home. He testified he overheard Bob Drouet tell Louis Davis that he would call his father, August Drouet, and tell him that Louis Davis was coming to pick up expense money and supplies.

Appellant called two witnesses, Jack Porter and John Pirsch, who testified with regard to the Houston trip. Jack Porter testified that he had a conversation with Louis Davis during the morning before the trip to Houston on Sunday afternoon. He testified that Louis told him that he and James and James’s wife wanted to go back to Houston to take care of some business concerning an automobile accident in which his son, James, had recently been involved. Porter stated, however, that he did not know whether Louis Davis proposed to handle the business in Austin or in Houston. James Davis had previously testified that he had been involved in an accident in Austin and that his automobile was in a repair shop there at the time he went with his father to Houston. Porter testified that he did not overhear any comment made by Bob Drouet to Louis Davis about the matter of the proposed trip to Houston. According to his testimony the job was shut down because the wind was so strong that it would have been dangerous for the crew to continue working on Sunday afternoon and the crew members had discussed the problem prior to the time the work was stopped. Although he recalled some shortage of supplies, Porter also testified that the shortage was not such as would have kept the crew from working. Porter testified that he did not work on Monday morning, but rather “rode around” with Kenneth Wright. The reason why he didn’t work was, according to his testimony, because he didn’t want to and not for the want of materials.

John Pirsch, the other witness called by appellant, testified that he overheard a portion of the conversation between Bob Drouet and Louis Davis in which Louis Davis said something about going back to Houston to see his family and coming back on Monday. He further testified that he saw Bob Drouet make a list of material on a piece of cardboard. Although he admitted that he had previously testified that there had been a shortage of stitch screws, he testified that the crew had stopped working because the strong wind made it difficult to handle large pieces of sheet metal.

Neither Bob Drouet nor his father, August Drouet, was called as witnesses by either party.

Appellant argues that the adverse testimony is so weak and circumstantial that it amounts to nothing more than a scintilla of proof and, therefore, constitutes no evidence in support of the jury’s findings that Louis Davis was acting in the course and scope of his employment and was subject to the right of control by his employer at the time of the collision. We cannot agree with this proposition. When viewed in a light most favorable to the verdict, we think the testimony of James Davis and Kenneth Wright, together with other facts and circumstances established by the testimony of other witnesses, constitutes ample evidence of probative force to support the jury’s verdict. James Davis testified that he was present and heard Bob Drouet direct Louis Davis to go to Houston and pick up the supplies. It is undisputed that Bob Drouet attempted to call his father in Houston to notify him Louis Davis was coming for supplies, and it is undisputed that Louis Davis went to Houston and made an effort to pick up the supplies and was told by August Drouet that the supplies would be sent by truck the following day. Such evidence is, in our opinion, of sufficient probative force to support the finding that the trip to Houston was in the course and scope of Louis Davis’s employment and while performing the mission, he was subject to the right of control by his employer, Best Steel Buildings, Inc.

We cannot agree with appellant’s contention that because there was some evidence Louis Davis stated that he was going to Houston to see his family, or to attend to some personal business, he was on a mission of his own and therefore was not in the course and scope of his employment. There is no evidence that he transacted any business of his own while on the trip. Even had it been established that he attended to some personal business or visited his family while on the trip, if, as the jury found, he was directed to make the trip in furtherance of the affairs of his employer, he would nevertheless be in the course and scope of his employment.

Conduct may be within the scope of employment, although done in part to serve the purposes of the servant or a third person. The fact that the preponderate motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment. If the purpose of serving the master’s business actuates the servant to any appreciable extent, the master is subject to liability if the act otherwise is within the service of his employer. Howard v. American Paper Stock Co., 523 S.W.2d 744 (Tex.Civ.App.—Fort Worth 1975) reformed and aff’d 528 S.W.2d 576 (Tex.1975); Dictaphone Corp. v. Torrealba, supra; Eubanks v. Hughes Engineering Co., 369 S.W.2d 49 (Tex.Civ.App.—Forth Worth 1963, writ ref’d n.r.e.); Restatement (Second) of Agency, sec. 236 (1958).

Next, appellant argues that even if Louis Davis was in the course and scope of his employment when going to Houston, he was not in the course and scope of his employment at the time of the collision while returning to Austin because the evidence conclusively establishes that his mission was completed the night before the accident when his employer advised him that the supplies would be sent to Austin by truck. We do not agree. The evidence shows that at the time of the collision Louis Davis was traveling back to Austin on Highway 290 which was the most direct route between Austin and Houston. There is nothing in the record to suggest that at the time of the collision he had undertaken a mission of his own.

The rule is that if an employee is sent on a special mission, he is considered as still on such mission while returning from the place to which he was required to go by his employer, unless he deviates from the purpose of his mission and engages in an enterprise of his own. Shelton v. Standard Ins. Co., 389 S.W.2d 290 (Tex.1965); Hartford Accident & Indemnity Co. v. Bond, 199 S.W.2d 293 (Tex.Civ.App.—Eastland 1946, writ ref’d n.r.e.). Even though the primary purpose of the mission was aborted because appellant elected to send the supplies by truck, Louis Davis was still within his employer’s control and in the furtherance of his employer’s business while returning to the point where the mission originated in Austin. It is elementary that if an employee is instructed to go to a certain place and return, as here, he necessarily would be required to travel in both directions. We find no merit in appellant’s second and fourth points and they are overruled.

Under its third and fifth points appellant urges that the trial court erred in overruling its motion for new trial because the evidence was factually insufficient to support the jury’s finding that Louis Davis was in the course and scope of his employment on the occasion in question and was likewise factually insufficient to support the jury’s finding that he was furthering the affairs and was subject to the right of control by appellant.

After a review of the entire record and after having weighed and balanced all the evidence, both that in favor and against the verdict and judgment, we are of the opinion that we would not be justified in concluding that the evidence is factually insufficient. Points three and five are overruled.

By its first point of error appellant urges that the trial court committed reversible error by admitting into evidence, over its objection on the ground of hearsay, the prior testimony of the witness, Kenneth Wright, which was given in a workmen’s compensation suit filed and tried by Mrs. Louis Davis and James Davis against Argonaut Insurance Company. As put by appellant, the question is: Did appellees establish the necessary predicate for the admissibility of the prior trial testimony of Kenneth Wright? We are of the opinion that they did.

The record reveals Argonaut Insurance Company not only carried the workmen’s compensation insurance for appellant but was also appellant’s liability carrier. Thus, in the former action Argonaut was the real party in interest just as in the present suit. There is no question but that the testimony of Kenneth Wright at the former trial of the workmen’s compensation case was given on the same issues i. e. whether Louis Davis was within the course and scope of his employment at the time of the collision and that a full opportunity for cross examination existed upon the question of whether he was acting in the course and scope of his employment. Since Argonaut carried both the compensation insurance and the liability insurance for appellant, we think there was a practical or representative identity of the party against whom the prior testimony was offered. Absolute identity of the parties is not necessary. St. Louis, Southwestern Ry. v. Hengst, 36 Tex.Civ.App. 217, 81 S.W. 832, 836 (1904); McCormick and Ray, Texas Law of Evidence, secs. 949, 950.

The only question is the unavailability of the witness. Former testimony is not admissible if a witness is available at the subsequent trial. The party offering the former testimony must therefore prove unavailability, which means in Texas that the witness is dead, or that he had become insane, or is physically, unable to testify, or is beyond the jurisdiction of the court, or that his whereabouts is unknown and that diligent search has been made to ascertain where he is, or that he has been kept away from the trial by the adverse party. Hall v. White, 525 S.W.2d 860 (Tex.1975); Houston Fire & Cas. Ins. Co. v. Brittian, 402 S.W.2d 509 (Tex.1966); Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 697 (1941).

Upon a pretrial hearing in the present suit it was shown that Mr. Wright was in Astonia, Oregon. The evidence at the pretrial hearing shows that the present case had been called for trial once before. Kenneth Wright was available as a witness at that time but the case resulted in a mistrial due to the illness of the trial judge before Wright was called as a witness. Several days before the present trial commenced appellees discovered that Kenneth Wright was in Oregon. On being contacted in Oregon by telephone a few days prior to trial with regard to testifying, Kenneth Wright replied that he would do “whatever God’s will” or would do whatever God intended him to do. Later in the week appel-lees again attempted to contact him by telephone but were told by his mother that he was ill and unable to come to the telephone. According to his mother he had become ill after coming to Oregon, was undergoing psychiatric treatment and would probably be admitted to the hospital on that date. Appellees then employed an agent in Oregon to contact him and furnish him with expense money and a round trip plane ticket to Houston. The agent was unable to contact him and reported back that he was in a psychiatric hospital. Under these circumstances we think the evidence was sufficient to raise a fact issue on the question of whether the witness was physically or mentally unable to testify. Consequently, we find no abuse of discretion in admitting Kenneth Wright’s testimony which he had given in the previous workmen’s compensation case. A. F. Conner & Sons, Inc. v. Tri-County Water Supply Corp., 541 S.W.2d 856, 859 (Tex.Civ.App. —Eastland 1976, no writ); Harris v. Reeves, 421 S.W.2d 689 (Tex.Civ.App.—Waco 1967, no writ); Missouri-Kansas-Texas R.R. v. Bush, 310 S.W.2d 404 (Tex.Civ.App.—Austin 1958, writ ref’d n.r.e.); McCormick & Ray, Texas Law of Evidence, sec. 947 (1956).

Even if the court erred in admitting the former testimony we do not believe the error, if any, was such that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment. In substance, the witness’s testimony related only to the conversation he overheard between Bob Drouet and Louis Davis in which he testified he heard Drouet tell Louis Davis to go to Houston and pick up the supplies. Thus, his testimony is merely cumulative of the testimony already given by James Davis with regard to the same conversation. Bob Drouet did not testify in the trial of this cause and insofar as we have been able to find, there is no testimony disputing the fact that Bob Drouet instructed Louis Davis to go to company headquarters in Houston and pick up the needed supplies.

Before a judgment may be reversed because of the admission of testimony two things must appear: First, the testimony must have been inadmissible and improper and secondly, it must have been such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, Tex.R.Civ.P.; Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (1953); Missouri-Kansas-Texas R.R. v. Bush, supra. In light of the whole record we cannot say that there is more reason than not to believe that the jury’s verdict and the judgment in favor of appellees was caused by the admission of the testimony in question. Appellant’s first point is overruled.

By its sixth point appellant contends that the trial court erred in excluding from evidence the title page of the deposition of Nancy Smith Graham. Appellant had sought to introduce the same to impeach her testimony by showing that she was a party defendant to this lawsuit at the time her deposition was taken. Nancy Smith Graham was the driver of the automobile which deceased, Louis Davis, rear-ended before colliding with the tractor-truck. Her deposition testimony concerned only what occurred at the scene of the accident and, therefore, related solely to the issue of negligence. Nowhere, either in its motion for new trial or by any point of error on this appeal, does appellant attack the jury’s findings that Louis Davis was negligent and his negligence proximately caused the collision. Appellant therefore waived its right to complain of such findings. Since appellant registered no complaint to these findings, the fact that the trial court refused to allow evidence to impeach a witness who testified only with regard to the question of negligence and proximate cause would be immaterial. To sustain the point would not avail anything beneficial to appellant because the jury’s findings of negligence and proximate cause established such facts and the quality of the evidence establishing the same does not constitute a viable issue in the case. Appellant’s sixth point is overruled.

Under its seventh point appellant asserts that the trial court committed reversible error by giving a supplemental charge requiring further deliberations after the jury reported that it was deadlocked. Appellant contends that the charge was coercive and compelled the jury to reach a verdict. In reply, appellees contend that appellant waived its right to complain of the charge because no objection was made to the charge before the supplemental charge was read to the jury and also because nowhere in its motion for new trial did appellant complain of the charge on the ground that it amounted to coercion. We sustain appellees’ contention and overrule the point.

When the trial court proposed the supplemental charge, counsel for appellant made the following statement:

“We think that it is contrary to the instructions given to the jury when they are chosen originally, and the instructions read to them by the Court and that in light of the note, sent to the Court with respect to the jury being hopelessly deadlocked, that under the circumstances no instruction whatever by the Court would be proper under the circumstances.”

The trial court made no ruling in response to the foregoing statement apparently because the court did not consider it as an objection. Appellant now takes the position that the statement amounts to an objection on the ground that the charge was coercive. It is readily apparent, we think, that the complaint was insufficient to show that an objection was being made on that ground. Since the court did not rule thereon and counsel made no request for a ruling, the court was authorized to treat the statement as a mere expression of counsel’s opinion. In any event, the complaint clearly was insufficient to apprise the court that an objection was being made on the ground of coerciveness. Had such an objection been made on that ground, the trial court might have deleted some parts of the supplemental charge or might not have given it at all. A party objecting to a charge has the duty to point out distinctly to the trial judge the matter to which he objects and the ground of his objection. Rule 274, Tex.R.Civ.P. Proper objection not having been made in the trial court appellant cannot now contend that the charge was coercive for the first time on appeal.

Furthermore, even if the complaint could be considered as an objection on the grounds that the charge was coercive, appellant’s assignment of error in its motion for new trial did not complain that the supplemental charge was coercive. A ground of error must be distinctly set forth in the motion for new trial or otherwise the assignment will be considered waived. Rule 374, Tex.R.Giv.P. The foregoing assignment fails to allege what, if anything, appellant deemed to be wrong with the supplemental charge. The only complaint is that the court erred in requiring further deliberations. As we view it, the assignment falls short of the requirement that a ground of the error must be distinctly set forth in the motion for new trial. The reason for the rule is to give the trial judge an opportunity to identify and understand the alleged error so that he can correct the error if possible, or in the alternative grant a new trial. Rule 321, Tex.R.Civ.P.; Casey v. Barkley, 527 S.W.2d 256 (Tex.Civ.App.—Corpus Christi 1975, no writ). This mandatory procedure not having been followed, appellant cannot now raise the alleged error of coerciveness for the first time on appeal. Having concluded that the point was waived, we do not reach the question of whether or not the charge was coercive. Appellant’s seventh point is overruled.

Under its eighth and ninth points appellant contends that the trial court erred in overruling its motion for new trial because there is no evidence to support the jury’s finding that Verna Jane Martin suffered a pecuniary loss as the result of the death of her father, and alternatively that the evidence is factually insufficient to support the finding.

At the time of Kenneth’s death, Verna Jane was three and a half years of age. Kenneth and Jane Martin separated on March 8, 1963, when Verna Jane was less than one year of age. Their divorce became final about a month and a half before he was killed in the accident in question. Service of citation having been obtained by publication, the divorce decree contained no order for child support payments. During their marriage Kenneth and Jane owned their home and resided in Amarillo, Texas. Kenneth worked as a long-haul truck driver. He also spent some time working on a ranch in Nevada as well as on his parent’s farm in New Mexico. He came home only occasionally and was gone for long periods of time. Jane testified that during' the marriage Kenneth provided for their basic food, transportation and shelter. She testified that the only time he came home was when he would come through on a truck. She testified that although he contributed some money to support her and Verna Jane, it wasn’t very much. She estimated that the money contributions and gifts from Kenneth to his daughter amounted to approximately $500 to $750 per year. She testified that he loved his daughter and cared for her.

At the time of his death Kenneth was employed as a long-haul truck driver for J. H. Rose Truckline, Inc. receiving an annual income of between $8,000 and $9,000 per year. He also shared profits as a part owner from a peanut farm in New Mexico with his parents from which he received approximately $800 per year. The testimony further shows that a truck driver doing the same work as he was doing would, under certain circumstances, be capable of earning $17,000 per year. At the time of his death the deceased was 47 years of age and according to the testimony had a life expectancy of 34.6 years.

Viewing the testimony in a light most favorable to the verdict and judgment, we are of the opinion that there is evidence of probative force to show that Verna Jane Martin, suffered a pecuniary loss as a result of the death of her father. While there is some evidence indicating that he may not have been all that could be expected of a dutiful and devoted father, we cannot agree with appellant’s contention that there is no evidence to support an award of any damages. Likewise we cannot agree with the contention that the evidence is factually insufficient to support an award of damages. Appellants’ eighth and ninth points are overruled.

This brings us to appellant’s tenth and final point by which it seeks a remittitur.

There are two distinct lines of authority in Texas as to how both a trial court and an appellate court should determine the question of excessiveness. Some courts follow precedents set in similar cases in determining whether damages awarded are excessive. Other courts consider only the record in the particular case under review without recourse to prior decisions. Halliburton Company v. Olivas, 517 S.W.2d 349 (Tex.Civ.App.—El Paso 1974, no writ); Collins v. Gladden, 466 S.W.2d 629 (Tex.Civ.App.—Beaumont 1971, writ ref’d n.r.e.); Kimbriel Produce Co. v. Webster, 185 S.W.2d 198 (Tex.Civ.App.—San Antonio 1944, writ ref’d w.o.m.). The practice of comparing awards in other cases is unsatisfactory because of the factual differences in the cases and also because of the continual erosion of the value of the dollar. Inadequate as it is, we prefer the “particular case” approach.

There is no rule prescribing the manner by which the courts determine whether the damages are too large or too small. Rule 328, Tex.R.Civ.P. All a court can do and all that is required of it by said rule, is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation for the loss or injury sustained, and treat the balance, if any, as excess. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959); Wichita Valley Ry. v. Williams, 116 Tex. 253, 288 S.W. 425 (Tex.Com.App.1926, jdmt. adopted); Berne v. Keith, 361 S.W.2d 592 (Tex.Civ.App.—Houston 1962, writ ref’d n.r.e.).

In a wrongful death case, the earning capacity of the deceased is not the sole basis for damages in such a case. “Every father and husband has for his wife and children a pecuniary value beyond the amount of his earnings by his labor or vocation.” 17 Tex.Jur.2d, Death by Wrongful Act, sec. 60, p. 613. However, in a wrongful death action a computation of pecuniary loss based upon the projection into the future of the deceased’s past earnings is the primary element of such awards and the award 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; Simpson v. United States, 322 F.2d 688 (5th Cir. 1963).

There is no question that the deceased’s earning capacity, had he lived, was such that he could have contributed a substantial part of the damages awarded by the jury. The crucial question is what amount his daughter, Yerna Jane Martin, could reasonably have expected. The jury concluded that but for his death she would have received care, maintenance, support, service, education, advice, counsel and financial assistance worth $50,000.00. In passing on the propriety of the verdict this court must first arrive at a conclusion as to what sum would be reasonable if it had been assessed by the jury in order to determine whether the verdict was excessive in amount. Texas & N.O.R.R. v. Syfan, 91 Tex. 562, 44 S.W. 1064, 1066 (1898); Collins v. Gladden, supra. In considering what amount Verna Jane could reasonably have expected in the future in the way of financial support, advice and counsel we must consider her father’s devotion to her before his death. The evidence shows that he was only an occasional father, coming home only when he came through Amarillo on a truck. His whereabouts were unknown at the time of her birth. After her birth she spent three months in an incubator. When her mother located him in Nevada he sent $400 for the hospital bill. While the evidence shows he provided for the basic needs of life for his family, he sent money only occasionally and at times his wife was required to call on his parents for money. According to his wife he gambled, and his whereabouts were unknown most of the time. After considering all the circumstances, as well as the ever-decreasing value of the dollar, we think the sum of $35,000.00 would be reasonable. The verdict and judgment is therefore excessive in the amount of $15,-000.00. If, within fifteen days from the date of this judgment, appellee, Jane Martin Lee, next friend of Verna Jane Martin, files a remittitur in writing of $15,000.00 to be paid out of the $23,065.20 awarded by the court to Verna Jane Martin, the judgment will be reformed and affirmed, otherwise the judgment will be reversed and remanded as to this appellee.

Finding no reversible error the judgment is affirmed as to all parties except appellee, Jane Martin Lee, next friend of Yerna Jane Martin, as to which party the judgment is conditionally affirmed.

SUPPLEMENTAL OPINION

Appellee, Janie Martin Lee, next friend of Verna Jane Martin, having filed in writing the remittitur as suggested in our original opinion and no motion for rehearing having been filed on her behalf, it is ordered that the judgment as rendered by the remittitur be affirmed.

ON MOTION FOR REHEARING

Our remarks heretofore made on Appellant’s Motion for Rehearing are withdrawn and the following is substituted in lieu thereof.

Appellant complains of our statement in our original opinion that counsel for appellant failed to object to the court’s supplemental charge on the ground that the charge was coercive. We stand corrected. Counsel did register an objection to the charge on that ground. The objection appears in the statement of facts under two paragraphs and somehow we overlooked the paragraph wherein counsel objected to the coercive nature of the charge. The fact remains, however, that the record fails to show that the trial court made a ruling thereon in accordance with the mandatory provisions of Rule 272 of the Texas Rules of Civil Procedure. Appellant does not assign as error the action by the court in overruling its objection to the charge because there was no ruling. Therefore we are not authorized to consider the complaint. It is only from alleged erroneous rulings that an appeal may be perfected. Appellant’s motion for rehearing is overruled.

      . Davis v. Argonaut Southwest Ins. Co., 464 S.W.2d 102 (Tex.1971). In that case the Supreme Court reversed the Austin Court of Civil Appeals and ruled that the evidence was sufficient to support a finding that Louis Davis was acting in the course and scope of his employment with Best Steel Buildings, Inc.

      . The assignment of error in the motion for new trial read as follows:
      “The Court erred in its charge to the jury wherein the Court required further deliberation after the jury had announced it could not reach a decision.”


author: BARROW, Chief Justice.

text:
    Samuel LEAL et al., Appellants, v. Eva Martinez RAMIREZ et al., Appellees.
    No. 15754.
    Court of Civil Appeals of Texas, San Antonio.
    March 30, 1977.
    Rehearing Denied April 27, 1977.

      Meredith & Donnell, Corpus Christi, for appellants.
    J. G. Hornberger, J. G. Hornberger, Jr., Laredo, for appellees.
   BARROW, Chief Justice.

This is a venue action in a suit brought under the Texas Wrongful Death Act. Appellees are the surviving widow and children of Romulo Israel Ramirez, who was fatally injured in a head-on collision between his GMC pick-up and a flatbed truck owned by appellant, Milchem, Inc., which was being operated by appellant, Samuel Leal. Suit was filed by appellees in Webb County, where the accident occurred, and each appellant filed a plea of privilege. Leal is a resident of Jim Hogg County, and Milchem, Inc. is a resident of Harris County. Both pleas were overruled after a non-jury hearing and appellants have timely perfected this appeal.

Appellees urge that venue is sustainable under Subd. 9a, Art. 1995, Tex.Rev.Civ. Stat.Ann. (1954). The venue facts necessary to be established by a preponderance of the evidence to maintain venue under this exception are: (1) that an act or omission of negligence occurred in Webb County; (2) that such act or omission was that of the defendant or his servant, agent, or representative acting within the scope of his employment; and (3) that such negligence was a proximate cause of the appellees’ injuries. H. E. Butt Grocery Stores, Inc. v. Norwood, 504 S.W.2d 920 (Tex.Civ.App.—San Antonio 1974, no writ); 1 McDonald Tex.Civ. Practice, § 4.17.2 (1965). Appel-lees must also prove that they sustained damages under the Wrongful Death Act although they are not required to prove the amount thereof. Theobold v. Pate, 542 S.W.2d 460 (Tex.Civ.App.—Tyler 1976, no writ); Bryant v. Kimmons, 430 S.W.2d 73 (Tex.Civ.App—Austin 1968, no writ); Burris v. Wilson, 363 S.W.2d 885 (Tex.Civ.App.—Amarillo 1962, no writ).

Appellants assert that there is no evidence to support the trial court’s implied findings of any of these essential venue facts other than that Leal was operating the Milchem truck in the scope of his employment. Appellants urge, in the alternative, that the evidence is insufficient to support such implied findings.

The fatal collision occurred about 1:30 p. m. on Texas Highway # 359 near San Juanito Creek Bridge about 16.6 miles east of Laredo. This highway is a two-lane pavement which was wet at the time of the collision in that it was drizzling rain. Leal was proceeding east and Ramirez was proceeding west. The record is very inconclusive as to exactly what happened. Both Ramirez and his passenger were killed. Pablo Vela was about a quarter of a mile behind the Milchem truck and testified that he saw it skidding sideways before it came to a stop on the pavement. However, he not only did not witness the collision, but was unaware that there had been a collision until he stopped at the scene. Thus, the evidence relating to the cause of the collision comes from Leal and from two DPS officers who arrived at the scene of the collision about 2:50 p. m. and made an official investigation.

Leal was an “interested party” and it cannot be said that his testimony is clear, direct, and positive. Cf. Praetorian Mutual Life Insurance Co. v. Sherman, 455 S.W.2d 201 (Tex.1970). Leal testified that he was proceeding about 40 mph when a car operated by Victoriano Garza passed him. After this car passed him, Leal saw the pickup approaching from the east in Leal’s traffic lane. He estimated that the pick-up was about 15 feet in front of him when he first saw it. Leal stepped on the brakes and tried to turn to his left towards the north lane. As he turned to his left, the pick-up struck the Milchem truck at about the right front door. Although no effort was made to clarify his estimate of the distance between the vehicles when he first saw the pick-up, this estimate was unquestionably erroneous as demonstrated by the physical facts. Victoriano Garza did not testify.

A plat was prepared by Officer Garner as a part of his investigation of the collision and the testimony of the two officers is largely based on this plat. Both vehicles laid down extensive skid marks prior to the impact, and, from these marks, the officers determined that the point of impact was near the center of the roadway. There were 120 feet of skid marks put down by each of the four tires of the Milchem truck and 61 feet put down by Ramirez’ pick-up. The officers concluded that the accident was caused by the pick-up being on its wrong side of the roadway, but such conclusion is not fully supported by the plat as drawn on the investigation report. The skid marks put down by the Milchem truck show that it was skidding sideways at about a 45 degree angle. As it skidded, the truck gradually moved to its left across the center of the roadway. The front end of the pickup struck the right door of the Milchem truck. All of the Milchem truck forward of the right door was on Leal’s left-hand side of the roadway.

The 61 feet of skid marks made by the pick-up extend in an arc from the center of the roadway down to within three feet of the south bridge railing and then back to the north to the point of impact. All of these skid marks are in the eastbound lane, which was Ramirez’ left-hand side of the roadway. From these skid marks, it is seen that for about 70 or 75 feet before the point of impact, Ramirez was on his wrong side and on Leal’s right-hand side of the roadway. However, the angle of the skid marks as drawn on the plat show that Ramirez had just pulled to his left across the center line and apparently had done so rather sharply just before he applied the brakes.

The point of impact found both vehicles, at least partly, on their wrong side of the roadway. The crucial question is which operator caused the other to take evasive action so as to excuse the operator being on his wrong side. Ramirez was killed and his version is unknown. Leal testified that he first saw the pick-up when it was in his lane of traffic and about 15 feet in front of his truck. Obviously, he was not keeping a proper look-out, or his testimony is inaccurate. The officers expressed the opinion that Ramirez was in the wrong lane of traffic because he was driving under the influence of alcohol. This conclusion is based on the fact that Ramirez had a partially consumed can of beer in his hand at the time of the collision. Unfortunately, blood tests were not made, and there is no evidence that Ramirez had more than this can of beer prior to the collision. This meager record does not justify the conclusion that he was driving while under the influence of alcohol.

Findings of fact and conclusions of law were not filed. However, the trial judge stated in the record that, in his opinion, the plat made by the officers demonstrates that the Milchem truck was skidding to Leal’s left-hand side of the roadway before Ramirez turned to his left. The trial court apparently concluded that Ramirez pulled to his left after he saw the Milchem truck skidding sideways. This conclusion is supported by the angle of Ramirez’ skid together with the lengths of the respective skid marks. Ramirez was excused for being on his left-hand side of the roadway because of the conduct of Leal. See Hammer v. Dallas Transit Co. 400 S.W.2d 885 (Tex.1966). We conclude that there is sufficient evidence to support the implied findings of the trial court that the collision was proximately caused by the negligence of Leal.

Appellees brought this suit seeking damages only under the wrongful death statute and not as survivors of Ramirez. Recovery is limited under this Act to recover of the present monetary value of pecuniary benefits that the statutory beneficiaries had a reasonable expectation of receiving from deceased had he not been killed. Texas Consolidated Transportation Co. v. Eubanks, 340 S.W.2d 830 (Tex.Civ.App.—Waco 1960, writ ref’d n. r. e.); Guitar v. Wheeler, 36 S.W.2d 325 (Tex.Civ.App.—El Paso 1931, writ dism’d); 17 Tex.Jur.2d Death by Wrongful Act § 43 (1960).

The widow of Ramirez was ill on the day that the pleas of privilege were heard by the trial court and unable to attend the hearing. The parties stipulated that, if present, she would testify that she is the surviving widow of Ramirez and that she and six named children are the only heirs at law of the deceased. Unfortunately, there was no stipulation or evidence offered to show that Ramirez was contributing anything to his family or even that he was living with them. Thus, there is no evidence that any of the statutory beneficiaries suffered any pecuniary loss by the death of Ramirez. It has been held that since this action is purely statutory, the doctrine of nominal damages does not apply. McGown v. International & G. N. R. Co., 85 Tex. 289, 20 S.W. 80 (1892).

We conclude that appellees failed to discharge their venue burden of showing that they had sustained “some damage” as a proximate result of the negligence of Leal. This failure requires a reversal of the judgment overruling appellants’ pleas of privilege. Theobold v. Pate, supra; Bryant v. Kimmons, supra. It is apparent that the sudden illness of the widow prevented development of this phase of the case. We therefore conclude that the cause should be remanded to the trial court in the interest of justice.

The order overruling appellants’ pleas of privilege is reversed and the cause is remanded to the trial court for a new trial.

      . Art. 4671 et seq., Tex.Rev.Civ.Stat.Ann. (1952).

      . Appellees raised Subd. 9a, 23, and 29a in their controverting affidavits but concede that unless venue is sustainable under Subd. 9a, it is not sustainable under the other two exceptions.

      . Leal was obviously very poor at estimating distance in that he testified the pavement was about 200 feet wide.


author: REYNOLDS, Justice.

text:
    Leona WILLINGHAM et vir., Appellants, v. Michael Joseph HAGERTY, Appellee.
    No. 8752.
    Court of Civil Appeals of Texas, Amarillo.
    April 29, 1977.

      Crenshaw, Dupree & Milam, J. Orville Smith, Lubbock, for appellants.
    Garner, Vickérs & Purdom, Robert E. Garner, Lubbock, for appellee.
   REYNOLDS, Justice.

Two opposing claimants were equally negligent in causing a collision and the trial court, acting under the Texas Comparative Negligence Act, decreed that they recover from each other one-half of the damages respectively sustained. The failure ■ to strike a balance in favor of the claimant liable for the lesser amount" results in an interlocutory order from which an appeal is not authorized. Dismissed.

An agreed statement of facts discloses that an automobile driven by Leona Will-ingham and one driven by Michael Joseph Hagerty, who was accompanied by his wife, collided in Lubbock County, Texas. Mrs. Willingham, joined by her husband, sued Hagerty for the personal injuries she sustained in the collision. Hagerty counterclaimed for damages to his automobile and his reasonable medical expenses, and his wife intervened to recover for her personal injuries. ,

A jury found that both Mrs. Willingham and Hagerty were equally negligent in proximately causing the collision. The, jury fixed Mrs. Willingham’s personal damages at $1,500. Stipulated by the parties were $3,096 for Mrs. Willingham’s reasonable and necessary medical expenses, $1,952.42 for Hagerty’s property damage and medical expenses, and $500 for Mrs. Hagerty’s personal damages and medical expenses.

At a hearing on motions for judgment, the trial court was informed that the real parties at interest in proceeding with this cause are The Travelers Insurance Company, which carried the liability insurance for the Willingham automobile, and State Farm Insurance Company, which carried the liability insurance for the Hagerty automobile, in amounts sufficient to cover all damages awarded. State Farm is contractually subrogated to Hagerty’s claim for property damages by its payment of $1,141.28 for Hagerty’s collision loss less a $250 deductible.

Counsel for The Travelers moved for judgment in favor of the Willinghams in the sum of $1,321.84, the balance after reducing both Mrs. Willingham’s and Hagerty’s damages by fifty percent and subtracting Hagerty’s lesser damages from Mrs. Willingham’s greater damages. State Farm’s counsel stated that his client requested judgment be rendered for the Will-inghams and against Hagerty in the sum of $2,298.05, for Hagerty and against the Will-inghams in the sum of $976.21, and for Mrs. Hagerty and against the Willinghams in the sum of $500. Both counsel relied on that provision of the Texas Comparative Negligence Act, Vernon’s Ann.Civ.St. art. 2212a, § 2(f) (Supp.1976), which reads:

If the application of the rules contained in Subsections (a) through (e) of this section results in two claimants being liable to each other in damages, the claimant who is liable for the greater amount is entitled to a credit toward his liability in the amount of damages owed him by the other claimant.

The trial court, being of the opinion that the “is entitled to a credit” statutory language is permissive and Hagerty had the election not to pursue a set-off, purportedly rendered judgment in favor of each claimant as requested by State Farm. The award in favor of Mrs. Hagerty has been paid and it is not further noticed.

This appeal was filed in the names of the Willinghams and responded to in the name of Hagerty. They submit that the only matter is controversy is whether the quoted statutory provision is mandatory or permissive and, therefore, subject to election.

The Willinghams argue, by analogy to the law of discounts and set-offs, that the credit is automatic and mandatory as a matter of public policy and legislative intent. Hagerty replies that the unambiguous statutory words are permissive and clearly and distinctly express the legislative intent that the party owing the greater amount may at his election, and only if he chooses, request and receive towards his liability a credit in the amount owed him by the other claimant.

The question is one of first impression in Texas. The Act itself does not define the word “entitled,” and we have found no Texas authority which speaks to the legislative use of the word, but authorities in other jurisdictions, as listed in Words and Phrases, have applied the ordinary meaning of the word in viewing legislative enactments. The ordinary meaning of “entitle,” as shown in Webster’s International Dictionary (2d ed.), is “to give a right or legal title to; to qualify (one) for (something); to furnish with proper grounds for seeking or claiming."

A primary rule of statutory construction is that the ordinary signification shall be applied to words of common use, V.A.C.S. art. 10, ¶ 1, and these statutory words are to be read according to their natural, ordinary and popular meaning. National Life Co. v. Stegall, 140 Tex. 554, 169 S.W.2d 155, 157 (1943). From this viewpoint and looking only to the phrase “is entitled,” the words are read as permissive, giving an election to the claimant liable for the greater amount.

Yet, ascribing a permissive character to the word “entitled” poses a conflict with Rules 301 and 302, Texas Rules of Civil Procedure, neither of which was modified or repealed by the Comparative Negligence Act. By Rule 301 and its predecessor, V.A. C.S., art. 2211 (1931), there has been engrained in Texas jurisprudence the inviolate principle that only one final judgment may be rendered in any cause except where it is otherwise specifically provided by law. Under Rule 302 and its forerunner, V.A.C.S., art. 2215 (1931), if upon a counterclaim the defendant establishes a demand against the plaintiff exceeding that established against him by the plaintiff, the court shall render judgment for the defendant for such excess. Consistent therewith, an unbroken line of decisions hold that a determination that plaintiff recover a specified sum from defendant, who, in turn, recovers from plaintiff a different specified sum is not a final judgment, but merely an interlocutory order, until the court strikes the balance of the two sums and renders judgment for the net amount in favor of the party whose recovery is greater. General Motors Acceptance Corporation v. Bodenheim, 37 S.W.2d 312 (Tex.Civ.App.—Texarkana 1930, no writ); Harris v. O’Brien, 54 S.W.2d 277 (Tex.Civ.App.—Beaumont 1932, no writ); Herrin Transp. Co. v. Marmion, 113 S.W.2d 291 (Tex.Civ.App.—Beaumont 1938, no writ); Manley v. Razien, 160 S.W.2d 995 (Tex.Civ.App.—Amarillo 1942, no writ).

The Comparative Negligence Act does not purport to authorize an appeal from a determination that each of two claimants shall recover a sum certain from the other; thus, ascribing to the phrase “is entitled” its ordinary meaning of permissiveness results in a nonappealable interlocutory order and leads to an absurdity which thwarts the express purpose of the legislature in enacting the Comparative Negligence Act. In that event and so long as the claimant elects not to take his credit, the nonappeala-ble interlocutory order never can become final, a prerequisite for the enforcement of a judgment, and any recovery by a claimant, and particularly by the claimant suffering the greater amount of damages, is forever barred.

A purpose different from that was expressed by the legislature in repealing the contributory negligence law, which barred any recovery by a negligent party, and in enacting a modified form of comparative negligence. In the first section of V.A.C.S., art. 2212a (Supp.1976), the legislature declared that

Contributory negligence shall not bar recovery in any action by any person or party or the legal representative of any person or party to recover damages for negligence resulting in death or injury to persons or property if such negligence is not greater than the negligence of the person or party or persons or parties against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributed to the person or party recovering.

The purpose is clearly expressed: recovery by a claimant whose negligence is not greater than the party against whom recovery is sought shall not be barred on account of such negligence. But, if the “is entitled to a credit” language of section 2(f) of the same act gives the party liable for the lesser damages an option to bar any recovery by the claimant, the legislative purpose is thwarted.

In this situation, the rule that statutory words will be read according to their ordinary meaning, as stated in Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070, 1074 (1927), “ought not to be applied when this will lead to an absurdity or thwart the plain purpose of the Legislature.” Instead, there is applied, in the language of Wood v. State, 133 Tex. 110, 126 S.W.2d 4, 7 (1939), “the settled law that statutes should be construed so as to carry out the legislative intent, and when such intent is once ascertained, it should be given effect, even though the literal meaning of the words used therein is not followed.” In this regard, we must not look alone to any one phrase, clause or sentence of the Act, but to the entire Act itself. Ex parte Roloff, 510 S.W.2d 913, 915 (Tex.1974).

When the entire Act is considered, the plain purpose of the legislature can be affected only if the legislature intended to employ the language “is entitled to a credit,” not to mean that an equally negligent claimant liable for the greater amount of damages has an election to prevent recovery by the opposing claimant, but to measure his liability as the amount in excess of the amount of damages owed him. We so hold.

Because the trial court professed to render money judgments in favor of each claimant and against the other instead of applying the credit and rendering judgment for the net amount, only a nonappealable interlocutory order was entered. Consequently, the only jurisdiction we have is to dismiss the appeal.

The appeal is dismissed.


author: McKAY, Justice.

text:
    Robert Lee BARSCH, Appellant, v. Ann Marie BARSCH, Appellee.
    No. 1016.
    Court of Civil Appeals of Texas, Tyler.
    May 12, 1977.
    Donald L. Wright, San Antonio, for appellant.
    William M. Porter, San Antonio, for ap-pellee.
   McKAY, Justice.

This is an appeal from an order granting the appellee-wife’s motion to vacate an original decree of divorce and to hold the appellant-husband in contempt of said prior decree. We are not presented with a statement of facts or any findings of fact by the trial court.

The transcript in this cause shows the following: The parties were married on or about October 1, 1954. On or about May 1, 1975, they separated and ceased to live together. The parties had one child, Robert Lee Barsch, born to the marriage on June 24,1958, who at the time of the filing of the divorce petition resided with appellee. Appellant filed an original petition for divorce on June 4,1975. On the trial on the merits held on August 5, 1975, the appellant appeared in person and by attorney and announced ready for trial, while the appellee waived issuance and service of citation by waiver, duly filed, and did not appear. The court granted the divorce, appointed appel-lee as managing conservator of the child and appellant as possessory conservator of the child and ordered appellant to pay the sum of $100.00 per month as child support. As a part of the property settlement agreement, the court further ordered appellant to pay-to appellee the sum of $200.00 per month “from the date of this divorce decree until she becomes a trade school graduate or until the child reaches the age of 18, whichever occurs first.” Appellant and ap-pellee were each awarded an undivided one-half interest in “the house and lot located at 922 Ware, San Antonio, Texas.”

On March 5, 1976, appellee filed a motion for contempt against appellant alleging that he had failed to make any of the aforementioned $200.00 payments since November, 1975, that she was in possession of a 1968 Buick automobile at the time of the decree, that appellant dispossessed her of said automobile in January, 1976, and that he apparently disposed of the same through his used car business. She also alleged that he had “failed and neglected to execute an assumption deed to the property at 922 Ware Street . . . ” Upon such motion hearing was set for March 23,1976. On the day of this hearing appellee filed an application for bill of review and motion to vacate judgment, alleging that appellant, in person and by and through his attorney, had committed extrinsic fraud by procuring a divorce decree on August 5, 1975 contrary to the one agreed upon by appellee and her attorney to be entered after the expiration of sixty days from the date of the original filing of the suit for a divorce. Upon hearing of both matters the same day, March 23, 1976, the trial court in its order dated April 5, 1976, found appellant, in person and by and through his attorney, guilty of extrinsic fraud as alleged by appellee, vacated the divorce decree of August 5, 1975, and carried forward virtually all of the orders of the prior divorce decree, with the exception of the disposition of the homestead at 922 Ware Avenue, San Antonio, Texas, to “remain in force and effect as temporary orders effective during the pendency of the suit . . . ” retroactive to August 5, 1975. The court further found that appellant had failed for the previous five months to pay appellee the $200.00 per month provided for in the original divorce decree and ordered appellant be “confined to the Bexar County Jail . . . for a period of (5) days or until he purges himself of the contempt by payment of $1,000.00” to appellee. On April 26, 1976, a final judgment of divorce was entered making the prior orders final, awarding the homestead, subject to indebtedness, to appellee, and awarding attorney’s fee to appellee.

On March 30, 1976, appellant tendered and paid $1,000.00 into the registry of the court.

Appellant’s two points of error complain that the trial court erred (1) “in finding appellant in contempt of court as the court vacated the very order on which the appellant was held in contempt of court and subsequently promulgated temporary orders to replace the said orders” and (2) “in granting judgment for Anna Marie Barsch based on its finding of extrinsic fraud as there existed an absence of sufficient evidence to establish the said extrinsic fraud.” The reason stated on both points was that “all of which sanctioned action which deprived appellant of equal protection on the law as guaranteed by the Fourteenth Amendment to the Constitution of the United States.” Appellee in her brief includes a plea to the jurisdiction, requesting the court to dismiss the appeal, urging that a court of civil appeals is without power by ordinary appeal to review contempt proceedings.

We agree with appellees contention that this court is without jurisdiction to pass on the contempt order. It is well settled that a judgment of a court convicting a person of contempt is not subject to revision in any other tribunal unless specially authorized by statute. Relief must be sought by an application for a writ of habe-as corpus. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893 (1956); Holder v. Holder, 528 S.W.2d 113, 115 (Tex.Civ.App.—Tyler 1975, no writ); Davis v. Davis, 531 S.W.2d 426, 428 (Tex.Civ.App.—Texarkana 1975, no writ). Moreover, the appeal from the contempt order appears to be moot because of appellant’s tender and payment of the $1,000.00 assessment into the registry of the court. Point one is overruled.

Point two complains of the “absence of sufficient evidence” to support a finding of extrinsic fraud against appellant. We do not have before us a statement of facts upon which we may determine the question raised by appellant’s challenge to the sufficiency of the evidence. Moreover, according to the transcript, no findings of fact and conclusions of law were either requested or filed. Without a statement of facts or findings of fact, such facts as are necessary to support the judgment must be presumed to have been found. Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363, 365 (1945); Carter v. Servis Equipment Co., 378 S.W.2d 894 (Tex.Civ.App.—Houston 1964, writ dism’d); 4 Tex. Jur.2d Part 1, Appeal and Error-Civil Cases, sec. 388, p. 226. Point two is overruled.

The judgment of the trial court is affirmed; appellee is awarded the sum of $350.00 to pay her attorney for preparing a brief in this appeal in accordance with the trial court judgment.


author: DIES, Chief Justice. KEITH, Justice,

text:
    Hubert SPRADLING, dba Sprad’s Boat Town, Appellant, v. N. D. WILLIAMS, Jr., Appellee.
    No. 7926.
    Court of Civil Appeals of Texas, Beaumont.
    May 12, 1977.
    Rehearing Denied June 9, 1977.

      Jerry V. Pennington, Orange, for appellant.
    Frank A. Adams, Beaumont, for appellee.
   DIES, Chief Justice.

N. D. Williams, Jr., plaintiff below, brought suit against Hubert Spradling, d/b/a Sprad’s Boat Town, under the Deceptive Trade Practices — Consumer Protection Act [Tex.Bus. & Comm.Code Ann. § 17.41, et seq. (Supp.1976-77)], received a judgment for $4,300 actual and $4,300 double damages, after a jury trial, from which Spradling has appealed. The parties will be referred to as they were below.

The court gave the following instruction to the jury:

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

Tex.Bus. & Comm.Code Ann. § 17.46 (Supp.1976-77) provides:

“(a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
“(b) The term ‘false, misleading, or deceptive acts or practices’ includes, but is not limited to, the following acts:”

Then follow twenty separate acts.

These specific acts found in § 17.46(b) are declared to be violations of the prohibition against deceptive business practices found in § 17.46(a). However, this listing is not to be considered exclusive and is worded to encompass any type of business activity which deceives consumers.

Defendant contends that the court’s definition of “Deceptive Trade Practice” is a comment on the weight of the evidence. We disagree. This definition is suggested in Bragg, “Now We’re All Consumers!”, 28 Baylor L.Rev. 1, 14 (1976). This article suggests that “. . . because of the newness of the concept in Texas, courts should be tolerant of detailed instructions to insure that the jury is fully aware of the rules which must govern its answer as to whether a defendant’s conduct is ‘false, misleading or deceptive.’ ”

In Texas, the provisions of the rules of civil procedure relating to the submission of a case to the jury give the trial court considerable discretion in deciding what instructions are necessary and proper in submitting issues to the jury. Tex.R.Civ.P. 277; Union Oil Co. of California v. Richard, 536 S.W.2d 955 (Tex.Civ.App.—Beaumont 1975, no writ). Furthermore, Rule 277 now permits an incidental comment on the weight of the evidence where it is properly a part of an explanatory instruction or definition.

We think the phrase “which has the capacity or tendency to deceive an average or ordinary person, even though that person may have been ignorant, unthinking or credulous” represents the intention of the Legislature. Section 17.46(c) provides that courts to the extent possible would be guided by interpretations given by the Federal Trade Commission and the federal courts to specified section of the Federal Trade Commission Act. See Wesware, Incorporated v. State, 488 S.W.2d 844 (Tex.Civ.App.—Austin 1972, no writ). This is the interpretation given by the F.T.C. and the federal courts. Federal Trade Commission v. Standard Ed. Soc., 302 U.S. 112, 116, 58 S.Ct. 113, 82 L.Ed. 141 (1937); Aronberg v. Federal Trade Commission, 132 F.2d 165, 167 (7th Cir.1942).

We do not, however, favor the trial court’s action in listing five instances above as being false, misleading or deceptive acts. We think he should have inquired of the jury whether certain factual issues (raised by the evidence) were represented or made, whether they were false, misleading or deceptive, and whether they were relied on. It would then be the court’s duty to determine if under the Act these were “Deceptive Trade Practices”. However, since each of the above five acts are in fact instances of Deceptive Trade Practices as listed in the twenty acts of the statute, and since § 17.44 —Construction and Application (Supp.1976-77) requires a liberal construction of the Act, we hold that the error was harmless, Tex.R.Civ.P. 434.

As previously noted herein, the trial court awarded double damages to the plaintiff. Both parties object to this, contending that the Act requires the award of treble damages when a violation is established. The applicable section of the Act follows:

“§ 17.50 — Relief for Consumers
“(b) In a suit filed under this section, each consumer who prevails may obtain:
“(1) three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended”. (Emphasis supplied)

Recently, the Dallas Court in McDaniel v. Dulworth, Docket No. 19108, 550 S.W.2d 395 (Tex.Civ.App.—Dallas, 1977) (not yet reported), held that treble damages are mandatory rather than discretionary reasoning that “may” as used in the introductory phrase of § 17.50(a) has as its subject “each consumer”; therefore, any discretion lies with the consumer.

In Mallory v. Custer, 537 S.W.2d 141, 143 (Tex.Civ.App.—Austin, 1976, no writ), the Austin Court said:

“We agree that Art. 17.50(b)(1) does not require that the prevailing consumer have judgment for treble damages. Article 17.50(b)(1), however, permits the entry of judgment for treble damages to the prevailing consumer.”

Before the publication of this opinion, the Supreme Court of Texas may have settled the matter (Woods v. Littleton, No. B-6270, 554 S.W.2d 662, writ granted, cause submitted January 26, 1977). However, to us the word “may” is not mandatory and expresses the Legislature’s intent that the trier of the facts may award damages up to but not above three times the amount of actual damages depending on the evidence of each case. This point is overruled.

The defendant has points contending each jury finding is against the great weight and preponderance of the evidence. This point directs us to the entire record. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We have carefully read the entire record of this case, and it would only prolong — without benefit — this opinion to repeat or summarize the testimony. In answer to Special Issue No. 13, the jury found that defendant represented to plaintiff that the boat in question was a 1973 model boat built in 1973; that this was a Deceptive Trade Practice (14), which was relied on by plaintiff. The plaintiff so testified, and it is undisputed the boat was a 1972 model built in 1972. This supports the judgment. These points are overruled,

The defendant — appellant—has other points which we find without merit, and they are overruled. All points of both parties are overruled. The judgment of the trial court is affirmed.

AFFIRMED.

KEITH, Justice,

dissenting.

I respectfully dissent for several reasons:

I. Undue Haste in Determining the Cause

The majority insists upon handing down an opinion with what I regard as unseemly haste. Our record was not complete until the statement of facts was filed on January 10, 1977; appellee’s brief was filed on March 25; the cause was submitted on April 21, and the opinion has been prepared for delivery precisely three weeks after submission. I am a firm believer in speedy justice but only when it is meted out after a careful consideration of all of the ramifications of the decision.

One of the primary questions in this case is whether or not a plaintiff prevailing in a suit under the Deceptive Trade Practices— Consumer Protection Act [Tex.Bus. & Comm.Code Ann. Sec. 17.41, et seq. (Sapp. 1976-1977), hereinafter “Act”], is entitled to treble damages, double damages, or simply to the amount of actual damages as fixed by the trier of the facts.

On January 26, 1977, our Supreme Court took under consideration the case of Woods v. Littleton, No. B-6270, 554 S.W.2d 662, after having granted an application for a writ of error upon several points, the first reading:

“Point No. 1 — The court of civil appeals erred in overruling plaintiffs’ crosspoint and holding that Sec. 17.50(b), Tex.Bus. Comm.Code, does not require a mandatory award of treble damages because the legislative history of said act clearly indicates the intention of the Texas Legislature to make an award of treble damages mandatory." (20 Tex.Sup.Ct.Jrl. 111-112, December 22, 1976).

One court of civil appeals has held that the cited section of the statute is permissive but not mandatory. The action of the trial court in trebling the actual damages was affirmed. Another court of civil appeals has held that the cited section is mandatory and reversed the judgment of the trial court refusing to award treble damages (but awarding actual damages) and rendered judgment for the plaintiff after trebling of the actual damages.

Although the Supreme Court has not been able to solve the problem in three months, the majority has done so, at least to its own satisfaction, in three weeks. I am confident that appellant and appellee will join me in disagreeing with an award of double damages in this cause since both parties attack such action.

What has been accomplished in this case by undue haste is to create further confusion in an already confused area of statutory law. I point up the confusion now prevailing: In Texarkana and Austin, an award of single actual damages is appropriate and legal under the cited section of the statute; in Beaumont, under the majority decision, double damages may be awarded; but, in Dallas only an award of treble damages is lawful. By waiting, probably for only a few weeks, we would have had a definitive answer to the question from our court of last resort. In this instance, I would await instructions from the high court.

II. The Erroneous Charge

The majority, although finding that the court’s listing of five elements taken from plaintiff’s petition as “false, misleading or deceptive acts [or practices]” is erroneous, holds the error to be harmless. Again, I disagree. The language quoted by the majority from the charge amounted to a peremptory instruction; certainly, it was a comment upon the weight of the evidence and advised the jury of the effect of its answers.

More than a hundred years ago, Chief Justice Roberts spoke to the problem confronting us in Texas & Pacific Ry. Co. v. Murphy, 46 Tex. 356, 366-367 (1876):

“It has long been the settled policy of the laws of this State, to keep separate and distinct, and to define accurately, the respective functions of the judge and of the jury in the trial of cases, both civil and criminal. As early as 1853, the Legislature, in pursuance of this policy, enacted a law, that is still in force, which indicates a radical departure from the mode of proceeding in trials, as practiced in the courts of England and of many if not most of the American States, wherein the common law prevails. It is as follows: The judge 'shall not in any case, civil or criminal, charge or comment on the weight of evidence. He shall so frame his charge as to submit questions of fact solely to the decision of the jury, deciding on and instructing them as to the law arising on the facts, distinctly separating the questions of law from questions of fact. He shall not charge or instruct the jury in any case, unless the charge shall have been by him first reduced to writing and signed, and every such charge shall be given in the precise words in which it shall have been written.’ (Paschal’s Dig., art. 1464.) This is mandatory and peremptory. It leaves no discretion to the judge, as to whether or not he shall ‘charge or comment on the weight of evidence,’ or as to whether or not he shall ‘submit questions of fact solely to the jury.’ It is positive direction to a judge as to what he shall do in the trial of a case in his court, however different may be the mode of trying cases in the courts of other countries, of which he may be informed by law-writers or by precedents. This is our system of procedure. The judge is forbidden by law either to aid a jury, or to infringe upon their province in weighing the evidence or in deciding upon the facts, in every case submitted to them. It presupposes that the jury is as competent to find the facts as the judge is to declare the law. This admits of no exception, so far as his duty, enjoined by law, is concerned, whether the facts are plainly established by the evidence, for one side or the other, or are complicated or doubtful.”

It is clear that the quoted language in the charge is “couched in terms of the victory or defeat of one of the parties.” Mobil Chemical Company v. Bell, 517 S.W.2d 245, 256 (Tex.1974). It is in direct violation of the positive language found in amended Tex.R.Civ.P. 271 \ “The court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers . . . .” Plaintiff read to the jury his allegations of deceptive practices; he offered evidence in support thereof and defendant disputed such evidence by his own testimony. At the conclusion of the trial, the court peremptorily instructed the jury that plaintiff’s allegations were in law deceptive practices.

The court thus told the jury, in no uncertain terms, that plaintiff must prevail. The quotation found in the majority opinion from the law review article is, at best, somewhat misleading. Immediately preceding such quotation the author sets out “one suggested general instruction” which is not a comment upon the weight of the evidence:

“You are instructed that the term ‘false, misleading, or deceptive acts or practices’ means an act or a series of acts which has the capacity or tendency to deceive an average or ordinary person, . . .”

Thus, under such an instruction, the jury would determine the existence of the facts free of the trial judge’s comment upon the weight of the evidence. Once such facts are determined, whether or not they constitute deceptive trade practices is a matter of law for the court. Cf. Knutson v. Ripson, 163 Tex. 312, 354 S.W.2d 575, 576 (1962).

The instructions found in the charge under examination would likely be condemned under Justice Pope’s law review article, wherein a whole section is captioned: “DO NOT COMMENT — DO NOT ADVISE THE JURY OF THE EFFECT OF ANSWERS.” And, that is precisely what the trial judge did in this case.

The majority would excuse this as harmless error, pointing to the fact that in one instance the jury found that the boat was represented to be a 1973 model built in 1973, whereas, it was built in 1972. But, I would note at this point that there was a great deal of testimony that boats do not have annual model changes such as found in the automobile industry. This factual dispute was not submitted to the jury. Instead, the trial court assumed the allegation of plaintiff to be true and instructed the jury that such constituted a deceptive practice.

Moreover, this issue — number thirteen in a series — was far down in the charge. Having been told the effect of their answers, the answer to number thirteen likely came about under the concept of “pulling on the boot”, to use one of the colorful analogies of the late Justice Norvell found in his dissent in Holmes v. J. C. Penney Company, 382 S.W.2d 472, 475 (Tex.1964):

“We have here another example of a time honored trial tactic which accompanied the introduction of the special issue practice in Texas, namely, getting a jury to follow along in answering general or undisputed issues until the desired answer to a vital or controlling issue is secured largely as a matter of routine rather than deliberation. This process has been likened to pulling on an old boot. Once the boot is started right at the top, there is little difficulty encountered with the heel.”

I also have serious doubts as to the inclusion of the emphasized words found in the second sentence in the instruction quoted by the majority. It had no place in this charge. Plaintiff is an experienced executive in a television station in Beaumont and operates an auto salvage company as a sideline. He made no pretense nor contention that he was ignorant, unthinking, or credulous. He knew that he was buying a used boat at a substantial discount from a dealer with whom he had dealt with before. He collaborated with the dealer in establishing a price on the boat sufficiently high that he could finance the boat he was purchasing and have the bank pay off the multi-thou-sand-dollar loan on his trade-in boat.

The reference to an ordinary person who may have been ignorant, unthinking or credulous could only have been designed to incite sympathy for the plaintiff. This is in direct contravention of the second sentence in Section III of the Admonitory Instructions which are to be given to every jury: “You are the sole judges of the credibility of the witnesses and the weight to be given their testimony, . . . ” Tex.R.Civ.P. 226a. While possibly not error in this instance, such an instruction has no place in a case such as the one under review.

III. Who Enhances the Damages?

I am frank to confess my confusion as to the determination by the majority — if there is a determination made — as to the enhancement of the damages. The majority quotes from § 17.50 of the Act and notes that the Dallas Court in McDaniel v. Dulworth, supra, has held that the statute is mandatory. It then quotes from the Austin Court in Mallory v. Custer, supra, and notes the pendency of the Woods Case in the Supreme Court. The majority continues:

“However, to us the word ‘may’ is not mandatory and expresses the Legislature’s intent that the trier of the facts may award damages up to but not above three times the amount of actual damages depending on the evidence of each case.” (emphasis supplied)

Insofar as was possible under the instructions of the court discussed earlier herein, the jury was the “trier of the facts” in this case but it made no determination to award double damages.

For the reasons discussed herein, and others not mentioned, I respectfully dissent to an affirmation of the judgment, particularly at this time.

      . The underlying opinion in the Woods Case is reported in 538 S.W.2d 800 (Tex.Civ.App.— Texarkana 1976, writ granted.)

      . Mallory v. Custer, 537 S.W.2d 141, 143 (Tex.Civ.App.—Austin 1976, no writ).

      . McDaniel v. Dulworth, Docket No. 19108, 550 S.W.2d 395 (Tex.Civ.App.—Dallas 1977) (no writ history yet).

      . One scholar has written: “[T]he word ‘may’ [used in § 17.50(b) of the Act] should not mean that the consumer may get damages because he will always get damages. A better reading of the statute might be that the consumer will get his damages and they may be trebled. This reading allows the court to award single, double or treble damages with the treble damages used as the outside limit to the award of punitive damages.” (emphasis in text) J. Hawkins, “Consumer Warranties”, 28 Baylor L.Rev. 395, 404 (1976). Perhaps this attempt to foretell the decision in Woods v. Littleton, supra, will be found to be successful; however, at this time, it is only one man’s guess.

      . D. Bragg, “Consumer Protection”, 28 Baylor L.Rev. 1, 14 (1976).

      . Id.

      . J. Pope and W. Lowerre, “Revised Rule 277”, 27 Sw.LJ. 577, 588 (1973).

      . “You are instructed that the term ‘false, misleading, or deceptive acts or practices’ means an act or series of acts which has the capacity or tendency to deceive an average or ordinary person, even though that person may have been ignorant, unthinking or credulous.” The instruction came from the law review article noted earlier in fns. 5 and 6, supra.