author: O’QUINN, Justice.

text:
    PRINTING INDUSTRIES ASSOCIATION OF TEXAS et al., Appellants, v. DIRECTOR OF the DEPARTMENT OF AGRICULTURE AND ENVIRONMENT et al., Appellees.
    No. 12986.
    Court of Civil Appeals of Texas, Austin.
    Oct. 3, 1979.
    Rehearing Denied Oct. 31, 1979.
    Adrian M. Overstreet, Jr., Mark T. Mitchell, Kammerman, Yeakel & Overstreet, Austin, for appellants.
    Mark White, Atty. Gen., Paul R. Gavia, Asst. Atty. Gen., Austin, for appellees.
   O’QUINN, Justice.

By this lawsuit two corporations and one voluntary association, in behalf of entities engaged in commercial printing and binding in Texas, seek to enjoin directors and executive officers of more than thirty departments and agencies of the State of Texas from purchasing or using printing equipment claimed to be in derogation of Article XVI, section 21, of the Constitution and statutes enacted under authority of the Constitution.

The attorney general, representing the state officials who were named defendants, filed special exceptions, which the trial court sustained, based in the main on the grounds that plaintiffs failed to state a cause of action and did not plead legislative or statutory permission to bring suit against the State. Upon plaintiffs’ declining to amend, the trial court ordered the suit dismissed.

Plaintiffs have appealed and bring eleven points of error. Upon the conclusion that plaintiffs pleaded a cause of action against directors and executive officers of the named departments and agencies for which legislative or statutory permission to sue was not required, we will reverse the judgment of the trial court and remand the cause for trial.

The initial question is whether this suit is against the State, requiring prior consent to sue, granted either by statute or other action of the Legislature.

It is settled law that if the purpose óf a lawsuit, brought against officials of the State, is to control action of the State, or subject it to liability, the suit is not maintainable without express consent of the Legislature. Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151 (1960), and cases cited there; Sheffield v. Briscoe, 550 S.W.2d 160 (Tex.Civ.App. Austin 1977, writ ref’d n. r. e.); Oxford v. Hill, 558 S.W.2d 557 (Tex.Civ.App. Austin 1977, writ ref’d); Bullock v. Hardin, 578 S.W.2d 550 (Tex.Civ.App. Austin 1979, writ ref’d n. r. e.).

Where the acts of the officials are not lawfully authorized, and therefore not acts of the State, an action against the officials, brought by a person or persons whose rights have been invaded, denied, or violated by such acts and who seek determination or protection of such rights, is not a suit against the State within the rule of immunity of the State from suit. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709 (1945); W. D. Haden Company v. Dodgen, 158 Tex. 74, 308 S.W.2d 838 (1958); Oxford v. Hill, supra; Bullock v. Hardin, supra.

Plaintiffs in this suit are Printing Industries Association of Texas and Printing Industries of the Gulf Coast, corporations organized under the laws of Texas, and Printing Industries of Austin, a voluntary association of printers, with its principal place of business in Austin. Essentially the plaintiffs contend that, because prohibited by the Constitution of Texas and legislative enactment in conformity with the Constitution, the state officials and their agencies sued may not lawfully perform their own printing, “. . nor is any Defendant legally entitled to perform printing services for any other Defendant, thus any printing done by the Defendants is not state action as it exceeds their constitutionally permissible authority.” Plaintiffs further alleged in effect that the defendant agencies are acting in violation of the Constitutional provision which requires that printing and binding for the State, with limited exceptions, be performed under contract, given to the lowest responsible bidder.

Article XVI, section 21, of the Constitution, as adopted in 1876, dealt with printing and binding in this language:

“All stationery, and printing, except proclamations and such printing as may be done at the Deaf and Dumb Asylum, paper, and fuel used in the Legislative and other departments of the government, except the Judicial Department, shall be furnished, and the printing and binding of the laws, journals, and department reports, and all other printing and binding and the repairing and furnishing the halls and rooms used for the meetings of the Legislature and its committees,, shall be performed under contract, to be given to the lowest responsible bidder, below such maximum price, and under such regulations, as shall be prescribed by law. No member or officer of any department of the government shall be in any way interested in such contracts; and all such contracts shall be subject to the approval of the Governor, Secretary of State and Comptroller.”

When examined in detail, part by part, section 21 provides, as applicable to the main issue in this case:

That all (1) stationery and printing (Except:

1. proclamations and
2. such printing as may be done at the Deaf and Dumb Asylum,
3. and, except further, the Judicial Department),

and (2) paper and (3) fuel used in the Legislature and other departments of the government shall be furnished, and (4) printing and (5) binding of the laws, journals, department reports, and (6) all other printing and binding and (7) repairing and furnishing the halls and rooms used for the meetings of the Legislature and its committees “shall be performed under contract, to be given to the lowest responsible bidder, below such maximum price, and under such regulations, as shall be prescribed by law.” (Emphasis added).

The Deaf and Dumb Asylum, named in section 21 in 1876, was designated the Texas School for the Deaf by the Legislature in 1949 (Article 3205a, Y.A.T.S.; Acts 1949, 51st Leg., p. 325, ch. 158, sec. 1). Subsequent changes have been made in that institution’s designation and its management. In 1977, the Legislature, by S.J.R. 50, Acts 1977, 65th Leg., p. 3369, proposed an amendment to section 21 of Article XVI of the Constitution, and the amendment was adopted by the electorate of Texas at an election held November 7, 1978.

The caption of Senate Joint Resolution No. 50, proposing the amendment, provided in full:

“Proposing an amendment to the Texas Constitution to delete the archaic reference to the ‘Deaf and Dumb Asylum,’ to allow certain products manufactured by handicapped individuals in nonprofit rehabilitation facilities to be purchased by the State of Texas, and to eliminate the formality of involvement in such transactions by the Governor of Texas, the Secretary of State, and the Comptroller of Public Accounts of Texas.”

The proposition, on which the amendment was submitted to the voters, provided that the voter might vote FOR or AGAINST

“. . . the constitutional amendment deleting the archaic reference to the ‘Deaf and Dumb Asylum,’ allowing certain products and services of handicapped individuals to be used by agencies and departments of state government, requiring the procurement of other products and services required in the operation of state government to be made under bids awarded to the lowest responsible bidder, making all such procurement processes subject to laws enacted by the legislature, and eliminating the requirement that the Governor of Texas, the Secretary of State, and the Comptroller of Public Accounts of Texas be personally involved with such transactions.”

Section 21, as amended in 1978, now provides:

“All stationery, printing, fuel used in the legislature and departments of the government other than the judicial department, printing and binding of the laws, journals, and department reports, and all other printing and binding and the repairing and furnishing of the halls and rooms used during meetings of the legislature and in committees, except proclamations and such products and services as may be done by handicapped individuals employed in nonprofit rehabilitation facilities providing sheltered employment to the handicapped in Texas, shall be performed under contract, to be given to the lowest responsible bidder, below such maximum price and under such regulations as shall be prescribed by law. No member or officer of any department of the government shall in any way have a financial interest in such contracts, and all such contracts or programs involving the state use of the products and services of handicapped individuals shall be subject to such requirements as might be established by the legislature.”

Close comparison of the original section 21 and the amended version fails to disclose any significant change regarding requirements that printing and binding be done by contract, except that the former allowance of printing and binding by the Deaf and Dumb Asylum has been enlarged to cover . . such products and services as may be done by handicapped individuals employed in nonprofit rehabilitation facilities providing sheltered employment to the handicapped in Texas . . . ”

The printing industries as plaintiffs below contended, and contend on appeal, that the defendant agencies are acting unlawfully in violation of section 21 of Article XVI of the Constitution. Specifically, plaintiffs alleged that because of such violations they “. . . will suffer irreparable harm, damage and injury unless the acts and conduct of Defendants above complained of are enjoined in that any and all printing performed by a state department or agency for itself or another department or agency is in derrogation [sic] of the competetive [sic] bidding requirement of state law and reduces or eliminates the demand for such printing by commercial, private enterprises in general and Plaintiffs in particular.”

In enacting the “Interagency Cooperation Act,” to permit state ágencies to render services for other state agencies, the Legislature explicitly excepted the services, supplies, and materials covered by section 21 of Article XVI in this language:

“Provided, however, no agency shall supply any services, supplies, or materials to another agency which are required by Section 21 of Article 16 of the Constitution of Texas to be supplied under contract given to the lowest responsible bidder.” Article 4413(32), Sec. 3, V.A.T.S.; Acts 1953, 53rd Leg., p. 841, ch. 340, as amended Acts 1965, 59th Leg., p. 564, ch. 287).

The attorney general in behalf of the agencies makes the singular argument on appeal that despite the provisions of the Constitution requiring that printing and binding be performed by contract, except in limited instances which are specified, the State is required to meet its own printing needs as much as possible before letting contracts to the lowest responsible bidder.

That argument is advanced for example in the following language:

“For over 100 years the agencies of the State of Texas have provided for at least part of their own printing and duplication. Against this background of practical and contemporaneous construction of Article XVI, § 21, it is clear that the provision requires the State to meet its own printing needs as much as possible and that it further requires the State to contract any printing it is unable to perform to a commercial printing firm which is the lowest responsible bidder.”

Appeal comes to this Court from action of the trial court dismissing the suit, after sustaining special exceptions, and before any evidence of course was introduced. We have only law questions at this stage of the litigation to decide. It is our conclusion that plaintiffs sufficiently alleged unlawful acts of the agency officials and the effect such acts might have on the rights of the complaining parties. We hold that the suit was maintainable as an action against the state officials, acting outside their lawful authority, and that invasion of the rights of plaintiffs was alleged with sufficiency to maintain the suit.

Since the cause will be remanded for trial, it is appropriate to observe that through the years, in not fewer than a dozen instances, attorneys general of the State have advised agency officials and officers of the Legislature regarding the mandatory provisions of section 21 of Article XVI.

In addition, this Court has in at least one instance had occasion to consider the question of what constitutes “printing” within the language of a provision first placed in the Constitution more than one hundred years ago. In State v. Steck Company, 236 S.W.2d 866 (Tex.Civ.App. Austin 1951, writ ref’d), this Court held that the officers representing the State had failed to follow the requirements and procedure prescribed by Article XVI, section 21, of the Constitution, and that a contract for “printing” cigarette tax stamps, though manufactured by the “decalcomania process,” rather than by ordinary printing, was unenforceable and the State was not bound.

The judgment of the trial court is reversed. The cause is remanded to district court for trial.


source: Caselaw Access Project

author: PAUL PRESSLER, Justice.

license: Public Domain

text:
    Joyce SPECK, Appellant, v. Henry Arthur SPECK, Appellee.
    No. A2120.
    Court of Civil Appeals of Texas, Houston (14th Dist.) Fourteenth Supreme Judicial District.
    Oct. 10, 1979.
    J. Leonard Gotsdiner, Houston, for appellant.
    E. H. Suhr, Helen G. Elliott, L. L. Elliott, Elliott & Elliott, Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and MILLER and PAUL PRESSLER, JJ.
   PAUL PRESSLER, Justice.

This is an appeal from the admission of the will of Inez Elizabeth Speck to probate.

The decedent died on May 14, 1978, and was survived by her husband, Henry Arthur Speck (appellee), a daughter, Joyce Speck (appellant), and a son, Edgar Sherman Speck. Appellee filed an application to have the will of the decedent admitted to probate. The will, witnessed by Helen Elliott and her husband L. L. Elliott, directed the payment of her debts and funeral expenses, and left the “rest, residue and remainder” to her husband; but in the event he did not survive her, to her son, Edgar Sherman Speck. Appellant timely filed a contest of the will which was heard December 4, 1978.

During the hearing, appellee called Helen Elliott as a witness to prove facts necessary for the admission of the will to probate under Tex.Prob.Code Ann. § 88 (Vernon 1955). During Mrs. Elliott’s testimony, counsel for appellee asked the question, “At the time she signed this instrument was she or was she not rational?” Counsel for appellant objected on the grounds that the question “calls for a conclusion on the part of the witness, and there is not sufficient predicate laid to determine the qualifications of the witness.” The objection was overruled on the basis that the witness could “give an opinion on whether or not the testator knew what she was doing.” Mrs. Elliott then answered, “Yes, sir. To the best of my knowledge she was rational

Appellant alleges, as her sole point of error, that “the court erred in overruling the objection to the proponent’s witness [Mrs. Elliott] concerning the alleged testamentary capacity of the testatrix.” Appellant correctly points out in her brief that the established rule is, “No witness can give his opinion that testator had capacity to make a will.” Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621 (1895). However, the appellant’s characterization of the testimony is improper. The cited wording of the question asked by appellee’s attorney did not call for a conclusion as to testamentary capacity. Neither did the witness reach such a conclusion. Rather, the question, as defined by the Court, concerned the condition of the decedent’s mind on the day the will was executed, and the answer to the question contained no more than the information sought. As stated by the Supreme Court of Texas, “The proper inquiry in a will contest on the ground of testamentary incapacity is the condition of the testator’s mind on the day the will was executed.” Lee v. Lee, 424 S.W.2d 609, 611 (Tex.1968). Even in Brown v. Mitchell, supra, the Court emphasized the importance of maintaining “. . . the distinction between opinions of witnesses upon a mental condition, as sanity and insanity and the like, which are allowed by nearly all authorities, and such opinions when directed to the question of the legal capacity to perform the act in question.” We hold that the testimony of Mrs. Elliott did not give an opinion as to the testamentary capacity of the decedent, but merely as to the condition of the decedent’s mind at the time of execution of the will.

During oral submission of the case, appellee made the contention that there was insufficient evidence to support a finding that decedent was of sound mind at the time the will was executed. This contention was not raised as a point of error in appellant’s brief and, therefore, cannot be considered in this appeal.

The decision of the probate court is affirmed.


author: DICKENSON, Justice.

text:
    Richard DICKERSON et al., v. B. W. REEVES et al.
    No. 5327.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 11, 1979.
    Rehearing Denied Nov. 1, 1979.

      Walter J. Woodman, Shreveport, La., for appellants.
    David R. Norton, Bailey, Williams, West-fall, Lee & Fowler, Dallas, for appellees.
   DICKENSON, Justice.

The question is whether an employee “deviated” from his employment by lighting a cigarette while working at his regularly assigned job. The employer, Venus Marble Company, is a partnership composed of Richard Dickerson and John Price. B. W. Reeves and Carl McGee owned the property which was damaged by the fire. The jury found that the partnership’s employee, Larry Dickerson, “was engaged in the service of Venus Marble Company and in furtherance of its business” at the time of the occurrence. The jury also found that “he was deviating” from the service of Venus Marble Company and the furtherance of its business. The trial court disregarded the finding of deviation under Tex.R.Civ.P. 301 and entered judgment on the remainder of the verdict for the property owners against the partnership and its employee. The partners appeal. We affirm.

If there were evidence to support the jury’s finding of’deviation, there would be a conflict with the finding that the employee was engaged in the furtherance of the partnership’s business. This would require a reversal under the test which is stated in Little Rock Furniture Manufacturing Company v. Dunn, 148 Tex. 197, 222 S.W.2d 985, at 991 (1949), as follows:

[If] one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers are fatally in conflict.

The partners’ first point of error controls the disposition of this case. The first point contends that the trial court erred in disregarding the jury’s finding that the employee was deviating. We disagree. Under Tex.R.Civ.P. 301 the trial court was authorized to disregard this finding if it “has no support in the evidence.” In considering this point we have considered only the evidence and inferences which support the finding of deviation, rejecting the evidence and inferences which are contrary to that finding. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974).

The partners admit that Larry Dickerson was employed by Venus Marble Company and that his duties included the work which he was doing at the time of the fire; however, they argue that Larry deviated from his employment by smoking while he worked. We disagree. Larry was an experienced employee who had gone to work for Venus Marble Company when it was formed. His uncle was one of the partners. Larry was working in the pouring room on October 10, 1974, when the fire occurred. He had been told not to smoke in the pouring room, and there were “no smoking” signs in that room. Larry had used acetone, a flammable substance, to clean wax off the mold where marble dust is poured and mixed with chemicals to manufacture marble counters and sinks. He had finished cleaning the mold about fifteen minutes before he began to apply a fresh coat of wax to the mold. Larry was smoking at the same time he was waxing the mold. He had not taken a break. He threw a match on the floor, and the fire ignited and spread.

The partners cite Dobson v. Don January Roofing Co., Inc., 392 S.W.2d 153 (Tex.Civ.App. — Tyler), writ ref’d n. r. e. per curiam, 394 S.W.2d 790 (Tex.1965). The Tyler Court held that the roofing company could not be charged with liability for the negligence of its servant “since the smoking of the cigarette by the employee while working was not in the course of his employment.” The Supreme Court’s per curiam opinion states: “[0]ur refusal of writ of error is not to be regarded as an approval of the holding made the basis of the Court of Civil Appeals judgment.”

The Tyler Court’s opinion in Dobson relies on Feeney v. Standard Oil Co., 58 Cal.App. 587, 209 P. 85 (1922). Feeney was overruled by George v. Bekins Van & Storage Co., 33 Cal.2d 834, 205 P.2d 1037 (1949). See also De Mirjian v. Ideal Heating Corporation, 129 Cal.App.2d 758, 278 P.2d 114, at 120 (1954).

The Tyler Court’s opinion in Dobson cites Restatement of the Law, Second, Agency § 235 which states:

An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed.

It should be noted that one of the illustrations applying that rule is as follows:

A is delivering gasoline for P. He lights his pipe and negligently throws the blazing match into a pool of gasoline which has dripped upon the ground during the delivery and which ignites. For the resulting harm, P. is subject to liability-

In our case it is acetone, a flammable substance, which was used by the employee in connection with his work for the partnership. The employee negligently threw the match near that flammable substance. The employer is liable. We note that the Restatement of the Law, Second, Agency § 236 states:

Conduct may be within the scope of employment, although done in part to serve the purposes of the servant or of a third person.

This rule includes the situation, as here, in which the employee, while engaged in his master’s work, is at the same time accomplishing a purpose of his own, such as lighting a cigarette while working.

The Restatement of the Law, Second, Agency § 230 states:

An act, although forbidden, or done in a forbidden manner, may be within the scope of employment.

A master cannot avoid responsibility to third parties for the negligence of his servant by telling him to act carefully. See Bass v. Metzger, 569 S.W.2d 917, at 924 (Tex.Civ.App. — Corpus Christi 1978, writ ref’d n. r. e.), and authorities cited therein.

See also “Annotation, Master’s Liability for Fire Allegedly Caused by Servant’s Smoking,” 20 A.L.R.3d 893 (1968).

We decline to follow the holding of the Tyler Court in Dobson.

The partners also cite Robert R. Walker, Inc. v. Burgdorf, 150 Tex. 603, 244 S.W.2d 506 (1951). In that case it was clear that the employee “had stepped aside from his duties” and that the act of throwing a lighted match into a stream of gasoline “was something wholly disconnected from his employment.” Burgdorf is not applicable to the facts of this case.

Appellees cite McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442 (1941), where an employee struck a match to light a cigarette while he was inspecting a gas pipe line which was leaking gas into the air, causing an explosion which injured the plaintiff. Our Supreme Court stated:

It is the settled law of this State that, in a negligence action, in which the defendant’s liability to the plaintiff depends upon proof of master and servant relationship between the defendant and a third person, such relationship is prima facie established by showing that the alleged servant was performing services peculiar to the defendant’s business or affairs on or about the latter’s property. . if Joe Woods was an agent or servant of Travis Gas Corporation acting within the scope of his employment in inspecting or examining this pipe line, his act in striking the match which caused this explosion would be directly chargeable to the pipe line corporation.

Since Larry Dickerson was acting in the course of his employment while waxing the mold, his act of striking the match which caused the fire is chargeable to the partnership by which he was employed. He had not taken a break or turned aside from his job. He was smoking while he worked.

The other points of error have been considered, and they are overruled. The judgment of the trial court is affirmed.


author: McKAY, Justice.

text:
    UNITED PLASTICS, COMPANY, Appellant, v. Carl DYES, Appellee.
    No. 1252.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 11, 1979.

      Grover Russell, Jr., Fairchild, Price & Russell, Center, for appellant.
    Gregg Owens, Nacogdoches, for appellee.
   McKAY, Justice.

This is a venue case in which appellee brought suit in Nacogdoches County against Moore Supply Company of Nacog-doches County, and against appellant which maintains its main office in Houston, Harris County, with its agent for service at same location. Appellee is a resident of Nacog-doches County.

Appellee alleged that he sustained damages as a result of the failure of plastic pipe which appellee had purchased from Moore Supply Company. This pipe was alleged to have been manufactured by appellant. Ap-pellee alleged causes of action under the Texas Deceptive Trade Practices-Consumer Protection Act, Sec. 17.41 et seq., Texas Business and Commerce Code, DTPA, and breach of express and implied warranties. In addition appellee has alleged alternative pleas of negligence and strict liability. Appellant filed his plea of privilege to be sued in Harris County, and after hearing, the plea of privilege was overruled resulting in this appeal.

Appellee testified that he was a resident of Nacogdoches County and engaged in the business of contracting pipelaying and the care of a number of rural water supply systems; that he bought some pipe from Moore Supply Company to use for a water system in a subdivision and later found the pipe to be defective because it failed to hold water; that the pipe was delivered to the job by an employee of Moore Supply Company. The invoice from Moore Supply Company for the sale of the pipe was admitted into evidence.

Appellee further testified that the pipe, with the exception of 1,000 feet, was used at the job site. Samples from the unused pipe were offered and admitted into evidence. He further testified that the pipe was marked “United, 3 inch” with other letters and numbers and markings on the pipe and that these were samples of the same pipe unloaded at the job site. In further testimony, appellee stated that the pipe failed some four to six inches behind the bell-shaped end of the pipe and that this was the only area where the leaks occurred and that CanTex and Jet Stream solvents were used to fasten the pipe sections together and that about two miles of the pipe obtained from Moore Supply Company was installed in the subdivision and that no other pipe was installed in that area.

The only other witness who testified was Millard Thomas Moore, who resided in Nac-ogdoches County and was branch manager of Moore Supply Company. He testified that Moore Supply Company had had an office in Nacogdoches since 1957 and had done business in the county since that time and that the invoice from Moore Supply Company was for 3-inch and 2-inch PYC bell-end pipe delivered to the job site on a carrier other than a Moore Supply Company truck. He further said that in 1976 he had dealings with Stan Roberts who was a manufacturer’s representative for several products bought by Moore Supply Company and that the pipe had been ordered from Stan Roberts and Associates by giving the order to Mr. Gary Roberts with Stan Roberts and Associates, but that he did not request United Plastics pipe or a particular brand. He further said that he was led to believe that the pipe was from United Plastics Company because it was the brand represented by Stan Roberts and Associates; that Moore Supply Company handled other brands of pipe; that he could not say whether or not the name “United” was embossed on the pipe made by United Plastics Company but that pipe manufacturers normally identified their pipe with some type of markings. He further said to his knowledge Moore Supply Company did no business with any other company who used the word “United” in their name and that he did not notice it on any other brand.

Plaintiff brings points of error maintaining that appellee failed to plead and prove a cause of action against the resident defendant, Moore Supply Company, as required by Subdivision 4 of Article 1995, Tex.Rev.Civ. Stat.; that appellee failed to plead and prove a cause of action based on negligence against appellant as required by Subdivision 9a, Article 1995; that appellee failed to plead and prove an agency or representative of the appellant in Nacogdoches at the time appellee’s cause of action arose as required by Subdivision 23; that appellee failed to plead and prove a cause of action under the Texas Deceptive Trade Practices-Consumer Protection Act, Section 17.41 et seq., Texas Business and Commerce Code, as required under Section 17.56 of said Act; and that there is no evidence or insufficient evidence to support the implied finding that appellant was the manufacturer of the pipe alleged to be defective as required by Subdivision 31, Article 1995.

Appellee maintains that he presented sufficient evidence to meet the requirements of Section 17.56, DTPA, in that he claims relief under Section 17.50 of the Act, and that the record shows that appellant has done business in Nacogdoches County. Ap-pellee also contends that there is sufficient evidence to meet the requirements of Subdivision 31 of Article 1995.

Section 17.45 of D.T.P.A. defines consumer as “an individual, partnership, corporation or governmental entity who seeks or acquires by purchase or lease any goods or services.”

Section 17.46 provides “(b) The term ‘false, misleading, or deceptive acts or practices’ includes, but is not limited to, the following acts: ... (5) representing that goods . . . have . . . characteristics, ingredients, uses which they do not have . . . ; (7) representing that goods or services are of a particular standard, quality or grade . if they are of another.”

Section 17.50 provides that “a consumer may maintain an action if he has been adversely affected by . breach of an express or implied warranty . . . .”

Section 17.56 reads as follows: “An action brought which alleges a claim to relief under Section 17.50 of this subchapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or has done business.” [Emphasis added]

The record reveals that the trial court had ample evidence to conclude that appellant had done business in Nacogdoches County. However, appellee made no proof of his cause of action. Appellant contends that appellee must not only plead a cause of action but must also prove such cause. As a general rule a resident defendant has a right to be sued in the county of his domicile except in specifically enumerated exceptions, and ordinarily when the venue is challenged with a proper plea of privilege, the plaintiff has the burden of pleading and providing the facts necessary to bring his case within one of the exceptions. Burtis v. Butler Brothers, 148 Tex. 543, 226 S.W.2d 825, 828 (1950). The question then presented is whether the language of Section 17.56 should be interpreted that proof of a cause of action is not necessary since the language of that section says “which alleges a claim to relief under 17.50.”

There are two cases which dealt with the question of proof of a cause of action before the 1977 amendment. They are Doyle v. Grady, 543 S.W.2d 893 (Tex.Civ.App.-Texarkana 1976, no writ), and Hudson & Hudson Realtors v. Savage, 545 S.W.2d 863 (Tex.Civ.App.-Tyler 1976, no writ). Both of these cases held that under the venue provisions of DTPA the plaintiff must follow the general rule and both plead and prove a cause of action to support venue. Joe Oil Aromatics, Inc. v. Commercial Fuel Oil Co., 564 S.W.2d 490 (Tex.Civ.App.-Houston [1st Dist.] 1978), cites and follows Doyle and Hudson, and apparently was also concerned with 17.56 before the 1977 amendment.

Appellant strongly urges that the amendment to 17.56 in 1977 did not eliminate the burden of appellee to both plead and prove his cause of action before venue may be maintained in Nacogdoches County.

Section 17.56, as passed in the Legislature’s regular session, 1973, read as follows:

“An action brought under Section 17.50 or 17.51 of this subchapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or is doing business.”

It is noted that the words “which alleges a claim to relief” were inserted, and “has done” was substituted for “is doing” by the 1977 amendment. By the insertion of the words “which alleges a claim to relief” was the requirement to prove a cause of action eliminated? Appellee cites 29 Baylor Law Review p. 525 et seq. in which there is a critique by Gaddy Wells of the DTPA as amended in 1977. At p. 539 the author states:

“The new amendments have significantly relaxed the venue requirements for suits brought under the DTPA. Now a consumer need only allege sufficient facts to establish a cause of action under the DTPA to sustain venue in one of the designated counties. This amendment was made to change the result of two civil appeals court decisions which construed the previous language of the Act to require that a consumer establish a prima facie case by a preponderance of the evidence in order to sustain venue in the designated counties. The purpose of the amendment was to eliminate the need to prove a cause of action under the DTPA twice — once in the plea of privilege hearing and once in the trial of the case on the merits.”

The two cases to which the writer referred were Doyle v. Grady, supra, and Hudson & Hudson Realtors v. Savage, supra.

Appellee also quotes in his brief a dialogue apparently between two State Senators in which one expresses his view that the 1977 amendment to Section 17.56 eliminates the requirement for the plaintiff to prove a cause of action. The brief does not give the source of the quoted dialogue.

Since the effective date of the 1977 amendment to Section 17.56, two cases have decided the point in question. They are Dairyland County Mutual Insurance Company of Texas v. Harrison, 578 S.W.2d 186, 189 (Tex.Civ.App.-Houston [14th Dist.] 1979, no writ), and Compu-Center, Inc. v. Compubill, Inc., 580 S.W.2d 88, 89 (Tex.Civ.App. — Houston [1st Dist.] 1979, no writ). In each of these cases the court held that the plaintiff was not required to both plead and prove a cause of action, but was required only to allege a claim for relief under Section 17.50.

We hold that appellee here was not required to prove his case under Section 17.56, but he could maintain venue in Nac-ogdoches County by alleging a claim for relief under Section 17.50. Appellee was required, however, to prove appellant resided, had his principal place of business, or had done business in the county where the suit was filed. Pettit v. England, 583 S.W.2d 875, 876 (Tex.Civ.App.-Dallas 1979, no writ). We have concluded that appellee made such proof.

We do not reach the question whether appellee has met the requirements of subdivision 31, Article 1995, nor do we reach appellee’s cross-point.

Judgment of the trial court is affirmed.

      . All reference to statutory articles are to Texas Revised Civil Statutes unless otherwise indicated.


author: McCLOUD, Chief Justice.

text:
    Robert F. ECKARD et ux. v. CITIZENS NATIONAL BANK IN ABILENE.
    No. 5355.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 18, 1979.
    Rehearing Denied Nov. 8, 1979.
    Don M. Connally, Rutledge, Rutledge & Connally, Abilene, for appellants.
    Maurice Brooks, Brooks, Gordon, Shahan & Hardaway, Abilene, David Stubbeman, Wagstaff, Harrell, Alvis, Batjer, Stubbe-man & Seamster, Abilene, for appellee.
   McCLOUD, Chief Justice.

The issue for determination is whether the evidence is legally and factually sufficient to support the jury’s finding that the deed from Robert F. Eckard and wife, Rose Mary Eckard, to ECK-R, Inc., their solely owned corporation, was not a “pretended sale.”

The trial court rendered judgment foreclosing a lien in favor of the Citizens National Bank of Abilene. The Eckards appeal. We affirm.

Robert F. and Rose Mary Eckard owned and occupied the property in question as their homestead prior to the transaction made the basis of this suit. On September 28, 1977, they signed a deed conveying the property to ECK-R, Inc., a previously existing corporation solely owned by the Eck-ards. ECK-R, Inc., by its president, Robert F. Eckard, signed a $68,000 deed of trust note payable to Citizens National Bank. The corporation executed a deed of trust covering the property in question. Also, the Eckards signed a personal guaranty agreement protecting the Bank. The corporation issued a resolution authorizing the corporation to purchase the property from the Eckards and empowering the Eckards to negotiate a loan from Citizens National Bank for $68,000. Following the transaction, ECK-R, Inc. made several payments on the note before defaulting. On July 25, 1978, ECK-R, Inc., by its president, Robert F. Eckard, conveyed the property in issue back to Robert F. Eckard and Rose Mary Eckard.

No question is raised concerning the personal liability of the Eckards or ECK-R, Inc. on the note. Only the issue of the Bank’s right to foreclose its lien is before us.

The Eckards contend the evidence establishes as a matter of law that the sale to their solely owned corporation was a pretended sale for the sole purpose of placing a lien upon their homestead in violation of Tex.Const. art. 16, § 50, which provides that, “All pretended sales of the homestead involving any condition of defeasance shall be void.” Alternatively, they urge that the jury’s finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. We disagree.

The court in Hardie & Co. v. Campbell, 63 Tex. 292 (1885) states:

“(I)t is not every sale of the homestead involving a condition of defeasance which it declares shall be void; but it declares that all pretended sales involving such conditions shall be void.”
If it was intended by the parties that the title should vest in appellants by reason of the conveyance, but subject to be divested within the designated time by Campbell paying to appellants the specified amount, then such a transaction would amount to a sale, as contradistin-guished from a pretended sale.

When confronted with a sale of a business homestead to a family-owned corporation, the court in Mayfield v. First State Bank of Holland, 19 S.W.2d 454 (Tex.Civ.App. — Austin 1929, no writ) said:

The only ground upon which it is claimed that the transaction was void, is that the property was the business homestead of Mayfield and wife, and their purpose in incorporating was to raise money to secure the indebtedness and conduct the business of the gin enterprise. This the parties had a right to do. We know of no inhibition against incorporating a business and conveying to the corporation the property on which the business is conducted, even if it constitutes a business homestead and the purpose is to obtain credit by making the business homestead an asset of the corporation.

See Nowlin v. Wm. Cameron & Co., 54 S.W.2d 1035 (Tex.Civ.App. — Fort Worth 1932, writ ref’d).

Robert Eckard testified that it was his intention to sell the house to the corporation, and the corporation could then borrow money and put a valid lien on the property. The Eckards’ attorney, who prepared the instruments involved in the transaction, testified that the purpose of the transaction was to convey the title and sell the property to the corporation. Crumpler, the Bank’s employee, described the transaction as a conveyance by the Eckards to the corporation.

The Eckards failed to establish as a matter of law that the conveyance was a “pretended sale” for the purpose of placing a lien upon their homestead. After reviewing all the evidence, we cannot say the jury’s finding is against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Judgment of the trial court is affirmed.

DICKENSON, J., not participating.


author: BROCK, Chief Justice.

text:
    STATE of Tennessee ex rel. SMITH, Commissioner, Petitioner, v. V. L. HOGANSON and Lena Hoganson, Respondents-Petitioners, and Guilford Glazer, Respondents.
    Supreme Court of Tennessee.
    Oct. 1, 1979.

      J. Kimbrough Johnson, Memphis, for State of Tennessee ex rel. Smith, Commissioner; Thomason, Crawford & Hendrix, Memphis, of counsel.
    Sam F. Cole, Jr., Memphis, for V. L. Hoganson and Lena Hoganson; Lane, Hansom & Cole, Memphis, of counsel.
    Thomas R. Price, Robert M. Johnson, Mary L. Wolff, Memphis, for Guilford Glazer; Canada, Russell & Turner, Memphis, of counsel.
   OPINION

BROCK, Chief Justice.

This is an eminent domain proceeding in which we granted certiorari to review the decision of the Court of Appeals reversing the judgment of the trial court and remanding the case for new trial because of alleged error in instructions to the jury.

The subject property is a commercial lot on Poplar Avenue in Memphis upon which a five story office building is located. The building is owned by the respondents, Ho-ganson, and is in the possession of respondent, Glazer, under a 99 year lease. At the time of trial, 82 years remained on the term of the lease and the lessee, Glazer, was obligated for rent at the rate of $700.00 per month up to December 1, 1976, and $800.00 per month thereafter. The lessee, Glazer, subleased the office space in the building for a gross profit of about $250,000.00 annually.

The State condemned a strip of this property 6 feet deep and 212 feet long along Poplar Avenue for the purpose of widening that street. At the time of taking, this strip was devoted to parking spaces by the lessee and his subtenants and the principal issues at trial were the amount of incidental damages to the remainder of the property not taken and the apportionment that should be made between the landlord, the Hogansons, and Glazer, the tenant, of the total compensation to be paid for the taking.

The various parties introduced testimony at the trial respecting the value of the land taken and the incidental damages to the remainder of the tract. This testimony was in conflict, not only with respect to the number of parking spaces that were lost by reason of the taking, but also with respect to the value of the land taken and the amount of the incidental damages to the remainder. The defendants offered the testimony of two appraisers each of whom concluded that the loss of 19 parking spaces resulted in a 9.45 percent reduction in rent and each of whom evaluated the land taken at $5,345.00 and the incidental damages at $113,000.00. One of these witnesses apportioned the total compensation of $118,345.00 by allowing $4,196.00 to the owners, Hogan-son, and $114,149.00 to the lessee, Glazer. The other defendants’ witness apportioned the total compensation, $2,500.00 to the owner and $115,845.00 to the lessee. The State offered the testimony of three appraisers, one of whom valued the land taken at $7,766.00 and incidental damages at $30,-350.00 but did not state what a proper apportionment between the landlord and tenant should be. The other two State’s witnesses were of the opinion there would be no reduction in the gross and net rent earned by the lessee and, therefore, no incidental damages. One of these witnesses placed a value on the land taken at $7,611.00, the other at $7,009.00. Neither of these two witnesses for the State stated what a proper apportionment between the landlord and tenant should be.

The value of the improvements taken, consisting of asphalt pavement, was stipulated by the parties to be $267.00 and the value of the construction easement was also stipulated by the parties to be $250.00, leaving for determination by the jury the fair cash market value of the land taken and the incidental damages, if any, to that portion of the original tract remaining after the taking. The jury returned a verdict awarding $6,996.00 for the land taken, $1,500.00 for incidental damages to that portion of the tract remaining after the taking, which along with the $267.00 for improvements taken and $250.00 for the construction easement, which had been stipulated by the parties, made a total of compensation awarded of $9,013.00. The jury further apportioned this total compensation by awarding $6,996.00 to the Hogansons, owners, and $2,017.00 to Mr. Glazer, the lessee.

When the verdict was announced, the trial judge sent the jury back out of the courtroom while he conferred with counsel and stated:

“It is obvious that this apportionment is improper.”

He consulted counsel about the possibility of having the jury redetermine the apportionment issue in further deliberations but defendant Glazer, the lessee, elected to move for a mistrial instead and when his motion for mistrial was overruled the verdict was accepted and recorded.

The Court of Appeals concluded that the trial court had committed reversible error in its instructions to the jury with respect to (1) the total compensation to be awarded for the taking and (2) the rule for apportioning the total award between the landlord and the lessee. Accordingly, a new trial was ordered with respect to all parties and the case was remanded for that purpose. Certiorari review by this Court was sought by both the State and the Hogan-sons and both petitions were granted.

I

In the case of a partial taking of property subject to a leasehold estate, the policy announced in prior decisions of this Court requires that the jury be instructed to first determine the total amount of just compensation for the taking, including the fair, reasonable cash market value of the property taken, on the date of the taking, and the incidental damages, if any, to that portion of the tract remaining after the taking. This total compensation is to encompass all the losses sustained by all parties having an interest in the property affected, such as, in this case, the landlord and the lessee. This total amount of compensation for the taking cannot exceed the value of the fee, unencumbered by the lease, on the date of taking. Moulton v. George, 208 Tenn. 586, 348 S.W.2d 129 (1961); Shelby County v. Barden, Tenn., 527 S.W.2d 124 (1975); State v. Texaco, Inc., 49 Tenn.App. 278, 354 S.W.2d 792 (1961); Mason v. City of Nashville, 155 Tenn. 256, 291 S.W. 1074 (1927). After determining this total of compensation to be awarded for the taking, the jury is then required to apportion that total between the landlord and the tenant. Moulton v. George, supra; Shelby County v. Barden, supra.

II

We agree with the Court of Appeals that the trial court erred in instructions respecting the apportionment of damages between the landlord and the lessee. The defective charge was as follows:

“Normally, in a case where you have a tenant occupying the entire premises and the state or the condemning authority takes part of the premises and damages it, the tenant is entitled, under normal circumstances, ladies and gentlemen of the jury, to the difference in the value of the lease for the balance of the term. Now, in this case I charge you that you must find from all of the surrounding circumstances and from the evidence, if you can, and if you do find that there was incidental damages, you will have to determine whether those incidental damages should be paid to the lessee or whether they have been incurred by the owner, the Hogansons, considering all the evidence and the circumstances that have been presented to you, what those amounts are.
“In other words, under the law, you will decide from the evidence and from the witnesses how the money should be allocated. In other words, you will first find the total amount of dollars, the value of the land taken and the incidental damages, if any, and then you will apportion between Mr. & Mrs. Hoganson and the lessees how those damages should be divided.”

In our opinion, this instruction is inaccurate and misleading. In order for such error to be available on appeal, it is not necessary that the offended party should have made objection to the charge in the trial court. Rule 51.02, Tennessee Rules of Civil Procedure; Rule v. Empire Gas Corp., Tenn., 563 S.W.2d 551 (1978). The error of the trial court was more than a mere omission to charge; here, he attempted to give instructions respecting apportionment and in so doing misstated the law and gave a confusing charge. In our opinion, the jury would have been justified in believing this instruction to mean that the lessee’s damages could consist only of incidental damages, if any, from the taking; and, the correct rule for making an apportionment between the landlord and tenant in the event of a partial taking was not given to the jury at all.

Briefly stated, the damage suffered by a lessee in the event of a partial taking is the difference between the value of the lease prior to the taking and the value of the lease after the taking. 4 Nichols on Eminent Domain, § 12.42(3) at 12-822. And the proper rule for apportioning compensation between the landowner and the tenant has been stated as follows:

“If there is a partial taking the award is apportioned as follows:
“(a) Leasehold value prior to the taking minus leasehold value of the remainder after the taking equals the amount to be paid to the lessee. The leasehold value of the remainder is computed by subtracting the reserved rent, as abated, from the rental value of the remainder area.
“(b) The damages, computed on the basis of the undivided fee rule, minus the amount found under (a) immediately above, equals the amount due to the lessor.”
Nichols on Eminent Domain, id.; Great Atlantic & Pacific Tea Co. v. State, 22 N.Y.2d 75, 291 N.Y.S.2d 299, 306, 238 N.E.2d 705, 711 (1968).

See also, Moulton v. George, supra; Sackman, “Compensation Upon the Partial Taking of a Leasehold Interest,” 3 Institute on Eminent Domain 35, 50-51 (1961).

The above quoted charge respecting the issue of apportionment of compensation between the landlord and the tenant does not state this rule; it states an incorrect rule. Moreover, the error cannot be considered harmless since the trial judge, upon hearing the verdict, immediately observed:

“It is obvious that this apportionment is improper.”

Ill

The Court of Appeals was of the opinion that the charge of the trial court did not indicate whether the total compensation to be awarded was “limited to the market value of the unencumbered fee in the entire tract, the part taken, or the part remaining.”

The trial judge instructed the jury that “The aggregate compensation awarded to the owner and the lessee cannot exceed the value of the unencumbered fee in this case. In other words, you are not to consider the fact that there is a long term lease on this property to increase any damages to either the owner or the lessee.”

This instruction could have been made clearer, but in our opinion it does not represent a misstatement of the law. The charge prohibits the “aggregate compensation” from exceeding the “unencumbered fee.” There is no indication that the jury should or might assume that the term, “unencumbered fee,” referred to the land taken or to the remainder of the tract after the taking rather than to the tract as a whole. Furthermore, it is apparent from the evidence that the highest value placed upon the land taken was $7,611.00 and that the total compensation awarded to the landlord and the lessee was $9,013.00, plainly indicating that the jury did not restrict the total compensation to the value of the strip of land taken. See, State v. Texaco, Inc., supra, 354 S.W.2d at 795.

However, we are of the opinion that the instructions, taken as a whole, were confusing and ambiguous with respect to the rule for determining the value of the land taken and the rule for ascertaining incidental damages, if any, to the land remaining after the taking. See, Nashville Housing Authority v. Cohen, Tenn., 541 S.W.2d 947, 950 (1976); Alloway v. Nashville, 88 Tenn. 510, 13 S.W. 123 (1890); Love v. Smith, Tenn., 566 S.W.2d 876 (1978).

Accordingly, the judgment of the Court of Appeals reversing and remanding for a new trial is affirmed and the cause is remanded to the trial court for a new trial on áll issues. Costs incurred in this Court are taxed against the State of Tennessee.

FONES, COOPER, HENRY and HARBI-SON, JJ., concur.


author: SHRIVER, Presiding Judge. SHRIVER, Presiding Judge.

text:
    Lillie Mae MORAN, Ivy F. Moran, Mildred Hutchison and James A. Hutchison, Plaintiffs-Appellants, v. Jean VINCENT, Worthy Grand Matron of the Grand Chapter of the Order of the Eastern Star, an unincorporated association, on behalf of herself and other members of the Order of the Eastern Star, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    June 29, 1979.
    Rehearing Denied Aug. 3, 1979.
    Certiorari Denied by Supreme Court Oct. 22, 1979.
    Joel H. Moseley, Nashville, for plaintiffs-appellants.
    Sam Wallace, Nashville, for defendants-appellees.
   OPINION

SHRIVER, Presiding Judge.

Plaintiffs-appellants filed this complaint in the Chancery Court at Nashville, Tennessee, alleging that they were unlawfully expelled from membership in the Order of the Eastern Star, State of Tennessee, and have appealed to this Court from the judgment and decree of the Chancellor wherein he sustained the motion of defendants for a summary judgment of dismissal of plaintiffs’ cause of action.

The complaint alleges that on November 9,1976, charges were brought without good cause, for reasons other than those stated, and that the charges were not defined so that plaintiffs could reasonably understand the nature thereof; that during the membership meeting of November 9, 1976, the procedure utilized was not in compliance with the Code of Laws and the Penal Code of the Order.

It is further alleged and the record shows that on November 20, 1977, pursuant to the request of the Centerville Chapter No. 329, the Worthy Grand Matron appointed a Trial Commission to hear the charges against the four plaintiffs and a summons was sent out for them to appear for trial on January 22, 1977, but it is averred that said summons did not comply with the requirements of the Penal Code of the Order; that on January 22, 1977, a trial was conducted by the Trial Commission but that the rules and regulations established in the Code of Laws and Penal Code were not followed; that evidence was presented in support of the charges and that those being tried presented evidence against the charges and in support of their insistence that they were not guilty thereof; that plaintiffs were notified in writing of the decision of the Trial Commission which had found them guilty of the charges and order a suspension of their membership, and, thereafter, plaintiffs appealed the decision and, on February 11, 1977, were notified that the appeal was referred to the Grand Chapter for review in accordance with Penal Code, Chapter 9, Section 2; that on April 26 and 27,1977, the Appeals and Grievance Committee of the Grand Chapter met in Nashville and reviewed the decision of the Trial Commission and, without following the procedures established in the Code of Laws, modified the decision of the Trial Commission and expelled the plaintiffs from membership in the Order of the Eastern Star and that on May 2, 1977, the Grand Secretary of the Grand Chapter notified the Secretary of the Centerville Chapter No. 329 of the decision to expel plaintiffs and asked the Secretary to request the plaintiffs to surrender their Chapter Dues Cards.

It is also averred that on May 23, 1977, the Worthy Grand Matron notified plaintiffs in writing that the decision of the Grand Chapter to expel them was final and that no other appeal was possible, and that plaintiffs have exhausted all remedies provided by the rules and regulations of defendant organization.

It is charged that plaintiffs are wrongfully denied the rights and privileges of membership in violation of their contractual rights as members of the organization and that their wrongful expulsion resulted in the destruction of a valuable personal relationship to the organization.

The prayers of the complaint are for the Court to accept jurisdiction of the case based on the contractual relationship between plaintiffs and the Order of Eastern Star; that the Court determine that the actions of the defendants in expelling plaintiffs were invalid because they were expelled without good cause and without benefit of proper procedure and in a manner so unjust that malice is shown to exist; that the Court order the reinstatement of plaintiffs to membership; and for general relief.

The Constitution and the By-Laws of the Order of the Eastern Star are made exhibits to the complaint, along with a copy of the charges against plaintiffs, numerous letters, and copies of notices, etc.

Defendants filed their Motion for Summary Judgment, as follows:

“MOTION FOR SUMMARY JUDGMENT
Come the defendants and respectfully move the Court for a summary judgment for the following reasons:
1. The Grand Chapter of the Order of the Eastern Star of Tennessee is an unincorporated association being social in nature.
2. That the Court has no jurisdiction to determine whether or not the Constitution of the said association has been violated, this being a matter only to be determined by said association.
3. The allegations contained in the original complaint, if taken as true, do not constitute a cause of action upon which this Court could or may render the relief sought.
4. This action, upon its face, cannot be maintained under Rule 23.07 of the Tennessee Rules of Civil Procedure.
5. This complaint cannot be maintained as a class action.
/s/ Sam E. Wallace. Sr. Attorney for Defendants”

Plaintiffs filed a “Cross Motion for Summary Jud-gment,” asking the Court to deny defendants’ motion and for entry of summary judgment in their behalf. In said motion it is stated that plaintiffs do not dispute the fact that the Grand Chapter of the Order of the Eastern Star is an unincorporated association and it is asserted that the law in Tennessee establishes the right of Courts to intervene in the internal affairs of unincorporated voluntary associations and grant relief where its by-laws were applied unfairly, arbitrarily, and in an oppressive manner.

—Chancellor’s Memorandum Opinion—

After hearing the cause, Chancellor C. Allen High filed the following Memorandum Opinion:

“MEMORANDUM
This matter is before the Court on defendants’ and plaintiffs’ motions for summary judgment.
This is an action by plaintiffs claiming they were wrongfully expelled from membership in the Order of the Eastern Star.
The complaint alleges that on November 9, 1976, charges against plaintiffs were read in an open meeting of the Centerville Chapter No. 329. A vote was taken to accept the charges and to request the appointment of a trial commission.
Plaintiffs were summoned to appear January 22, 1977, before a trial commission appointed to hear the charges. Copies of the charges were attached to the summons together with a notice that they had a right to appear with counsel.
Plaintiffs did appear with counsel at the trial conducted by the commission.
On February 2, 1977, plaintiffs were notified in writing of the decision of the trial commission finding them guilty and imposing a six-months’ suspension.
Following an appeal by two of the plaintiffs the Appeals and Grievance [Committee] of the Grand Chapter of Tennessee Order of Eastern Star, by vote expelled the plaintiffs from membership.
No property right was affected by the expulsion.
Courts are hesitant to interfere with the internal affairs of private associations or clubs. Tennessee Secondary School Athletic Association v. Cox, 221 Tenn. 164, 425 S.W.2d 597 (1968).
‘The general rule is that the foundation of the jurisdiction of a court of equity in a case of expulsion of a member of a voluntary association is the right of property of which the member is deprived by the expulsion, and it is frequently stated as a rule that if there is no right of property affected, a court of equity can grant him no relief.’ § 40, Associations and Clubs, 6 Am. Jur.2d 471.
Where as here the expelled member had reasonable notice of the charges, an opportunity to be heard, and the trial conducted in accordance with general principles of law and justice, the courts should not interfere. No property rights of the plaintiffs were involved and the procedures that were followed meet the requirements of substantial fairness.
Defendants’ motion for summary judgment will be granted, and defendants’ attorney should prepare a judgment in accordance with this Memorandum.
Sept. 12, 1978
/s/ C. Allen High CHANCELLOR”

The foregoing opinion was followed by a decree, entered September 20, 1978, implementing the decision of the Court as announced in the opinion, followed by motion to reconsider which was overruled and an appeal to this Court granted.

—Assignments of Error—

There are three assignments of error, as follows:

“1. The Chancellor erred by granting appellees’ motion for summary judgment and dismissing the complaint on the basis of the lack of jurisdiction in an equity court to intervene in the affairs of a private association.
2. The Chancellor erred in granting appellees’ motion for summary judgment and dismissing the complaint on the basis of the lack of a cause of action upon which relief can be granted.
3. The Chancellor erred by denying the appellants’ motion for summary judgment since no disputed issue exists as to any material fact for the Court to resolve, and all the facts presented support the allegation that the appellants were wrongfully expelled without good cause, without benefit of proper procedures set out by the Constitution and By-Laws of the organization and in an inequitable, arbitrary and oppressive manner.”

—Our Conclusions—

We concur in the conclusions of the Chancellor and his finding that no property rights were affected by the expulsion of plaintiffs from the Order of the Eastern Star, and that the procedures followed were substantially in accordance with the Constitution and By-Laws of the Order and meet the requirements of substantial fairness.

The Chancellor referred to Tennessee Secondary School Athletic Association v. Cox, 221 Tenn. 164, 425 S.W.2d 597 (1968), in which case our Supreme Court, in dealing with a question very similar to the one involved in the case at bar, pointed out that the evidence did not show that the proceedings before the Board of Control of the Association were not conducted in good faith and lawfully and, referring to 6 Am. Jur.2d, Associations and Clubs, Section 27, page 453, pointed out that it is well established that the Courts will not interfere with the internal affairs of voluntary associations, except in cases involving fraud, lack of jurisdiction, or the invasion of property rights.

The Court quoted with approval from Robertson v. Walker, 62 Tenn. 316 (1874), to the effect that a court of chancery cannot restore parties to their position as members of a voluntary charitable association where they have no individual property rights to be asserted, and concluded as follows:

“. . . Where such by-laws infringe no public policy or rule of law and are not unreasonable, the court will never interfere to control their enforcement, but such corporations or associations will be left to enforce their rules and regulations in the manner they have adopted for their own government and methods of discipline.”

In the case of Coke v. United Transportation Union, 552 S.W.2d 402 (Tenn.App.1977), this Court, in an Opinion by Judge Todd, held that courts may intervene where the procedures of the Union were not followed or where its officers acted in an arbitrary, oppressive, or unlawful manner.

In the case at bar we find nothing in the record to support the allegation of arbitrary, oppressive or illegal action on the part of the members and officers of the Order of the Eastern Star in dealing with the charges against the appellants herein.

It is to be noted that among the provisions in the Constitution and By-Laws of the Order of the Eastern Star is the following:

Section 7. Final Judgment. — The Grand Chapter shall have authority to determine all controversies between Chapters, or between a Chapter and members of other Chapters, to enforce discipline on its officers and members of the Order in the State when the Subordinate Chapters fail to enforce discipline, to decide all appeals from the action of Subordinate Chapters or their officers or from the actions of Grand Officers or members of Grand Committees.

In Assignment No. 3, appellants charge error in not granting their Motion for Summary Judgment “. . . since no disputed issue exists as to any material fact for the Court to resolve.”

When the procedures outlined in the bill of complaint and supported by exhibits are compared with the By-Laws of the Order, the charges of irregularities and arbitrariness on the part of the defendant Order are not sustained but are substantially refuted.

From all of the facts and circumstances disclosed by this record, we conclude that the Chancellor reached the right decision, hence, the judgment of the Chancery Court is affirmed.

AFFIRMED.

TODD and LEWIS, JJ., concur.

—ON PETITION TO REHEAR—

SHRIVER, Presiding Judge.

Petitioners, plaintiffs-appellants in the above styled cause, have filed a Petition to Rehear the opinion and judgment of this Court heretofore filed on June 29, 1979.

A consideration of the petition discloses that no material matters in said cause are brought to the attention of this Court which were overlooked and not fully considered in the said opinion and decree of the Court of June 29, 1979.

The said Petition to Rehear is respectfully denied.

TODD, and LEWIS, JJ., concur.


author: FRANKS, Judge.

text:
    Paul VALENTINE, et ux., Plaintiffs-Appellees, v. CONCHEMCO, INC., Defendant-Appellant.
    Court of Appeals of Tennessee, Eastern Section.
    July 6, 1979.
    Permission to Appeal Denied by Supreme Court Oct. 22, 1979.

      Ben W. Hooper, II, Newport, for defendant-appellant.
    William M. Leibrock, Newport, Kenneth W. Kromer, Jr., Knoxville, for plaintiffs-ap-pellees.
   OPINION

FRANKS, Judge.

This suit against the manufacturer, alleging negligence, strict liability and breach of warranty for the destruction of plaintiffs’ mobile home by fire, resulted in a jury verdict of $15,000.00. Responding to a motion for new trial, the trial judge suggested a remittitur of $5,809.30, which was accepted by the plaintiff but defendant has appealed charging numerous errors.

Plaintiffs purchased the mobile home in February, 1975, and it was destroyed by fire on the night of May 20, 1975. Plaintiff, Kenneth Valentine, testified that on the night of the fire he was awakened by his wife’s screams and observed a “bluish glow” on the wall separating the bedroom and bathroom; he also observed flames and smoke inside the bathroom as he exited the trailer. He disengaged the electrical power supply to the home but the fire progressed rapidly and the entire trailer was engulfed in flames and totally destroyed. Janice Valentine confirmed the existence and location of the “glow”.

At the trial, plaintiffs relied on an expert witness to establish their case against the manufacturer. The witness, Hal Sanders, is an experienced fire investigator and a consulting engineer by profession. In the course of his investigation, Sanders examined the remains of the mobile home with particular emphasis on the electrical circuitry and electrical appliances which were inside the trailer at the time of fire. Additionally, he examined a new mobile home of the same make and model. The witness offered the opinion, based upon his observations, that the fire had originated in an electrical outlet located in the wall separating the bedroom and bathroom. He concluded the cause of the fire was a short circuit in the outlet caused by condensation of moisture in the electrical outlet, with the source of the moisture being the bathroom. He further stated that the use of a non-weatherproof electrical outlet in that particular location violated provisions of the National Electrical Code.

Defendant’s employee in charge of assuring compliance with various safety codes, testifying as an expert, was of the opinion that the outlet complied with the National Electrical Code. Defendant also offered evidence with respect to the procedures used in the course of manufacture of mobile homes to prevent the escape of moisture from the bathtub areas.

The assignments of error are:

1. The verdict of the jury is so excessive as to evidence passion, prejudice or unaccountable caprice.
2. There was no evidence to support the verdict of the jury on the issues of negligence, warranty or defect in design.
3. The Court erred in initially ruling that a defense witness had not been qualified as an expert.
4. It was error not to admit into evidence the business records of defendant relating to the standards of The National Fire Protection Association and Underwriter’s Laboratories, Incorporated.
5. The Court erred in failing to charge the jury with the official standards for regulations of the National Fire Protection Association and National Electrical Code.
6. The Court erred in charging the jury on theories of negligence as there was no evidence of negligence on the part of the defendant.
7. The Court erred in charging the jury on theories of warranty as there was no evidence to support the allegation of any breach of warranty by defendant.

In support of the first enumerated assignment, defendant argues that another jury from the same panel at the same term of court had returned a large jury verdict in another mobile home fire case and, since plaintiffs only proved damages in the amount of $9,190.70, the verdict alone infers misconduct on the part of the jury.

The first argument is without merit because the record does not establish that this jury was drawn from the same panel or that any particular person served in the capacity as a juror in both cases and the assertion, if established in the record, would not ipso facto establish a basis of prejudice.

The second argument relates to the size of the jury verdict but the record establishes that the disparity between the jury award and the actual damages was the result of confusion rather than passion or prejudice. Plaintiffs sued for $16,503.39 compensatory damages and $10,000.00 punitive damages, and proved $9,190.00 actual damages.

After the jury retired to consider its verdict, the jury foreman returned with this inquiry:

“MR. TURNER: I think you specified this and it just slipped our minds. I think you quoted a figure of $16,000 or $9,000, now we don’t know which is which

Defense counsel objected to the Court’s clarifying the figures for the jury on the grounds that it would amount to a comment on the evidence. The Court declined to respond to the query and shortly thereafter the jury returned with the verdict. It is apparent the jury’s confusion was not alleviated by the judge’s response, a response endorsed by defense counsel. No passion or caprice can be read into their mistake, which was corrected by the remittitur.

The next assignment is directed toward the evidence presented by plaintiff. It should be noted at the outset the standard for review of a jury verdict is whether there is material evidence to support the verdict. Prater v. Burns, 525 S.W.2d 846 (Tenn.App.1975). The focal point of this assignment is the testimony of plaintiffs’ expert, Sanders. The defendant charges the testimony by the expert that a malfunction of the non-weatherproofed, electrical outlet was the cause of the fire was mere speculation, not amounting to material evidence, because Sanders never actually observed the allegedly defective outlet. It is undisputed that the witness in a search of the wreckage was unable to identify the specific electrical outlet for examination.

The witness examined the remains of the mobile home in May or June of 1975; he systematically examined the remains of appliances in the area of the fire, the washer, dryer, clock radio, water heater and all of the outlet receptacles except the receptacle in the wall between the bedroom and bathroom. He testified that he was unable to locate the particular outlet in the wreckage although he made a diligent search. He determined from inspection of the other outlets and appliances that none of these had been the source of the fire.

Based upon those observations and his inspection of an undamaged mobile home of like make and model, and the location and appearance of the fire as described by plaintiffs, the witness concluded that the missing outlet had caused the fire. The defendant contends that this conclusion, offered without actual inspection of the outlet, was nothing more than speculation which “borders on perjury because it is so preposterous.” This bold declaration is borne out neither by the evidence in this case nor the law.

The witness testified to extensive experience in fire investigation and a knowledgeable background in electrical codes. The witness relied upon the plans and specifications for the mobile home, his inspection of an essentially identical trailer and the Code in concluding that the outlet should have either been weatherproofed or placed elsewhere. He explained his theory of causation as follows:

Q. Alright, now let’s talk about the moisture in the wall or in the cavity, how is that moisture going to get in when you’ve got a one piece single construction or one unit, fiberglass, plastic or whatever it is, tub-shower combination, how is it going to get in there?
A. There’s a seam around the top of the shower stall that has a little chrome trim, which is one location. Around the location there’s a plate that fits over the valve handle for the shower, the tub and shower valves, moisture can get in there, warm moist air, we’re not talking about like rain passing through, we’re talking about warm moist air as it builds up in the bathroom then it passes into cooler areas and then it starts condensing out on cooler surfaces and .
Q. . [W]hat happens when you get condensation on the cooler surfaces?
A. Well, you get droplets of moisture, droplets of water where it condenses and then it will run down towards the floor, and if it condenses on wiring then it will run down the wiring.
Q. Alright, what happens if it condenses on wiring and runs down the wire to the receptacle box?
A. It would run into the receptacle box, and over the terminals and the areas in the receptacle itself. The receptacle, the hot side and the ground strap are about a thirty second of an inch apart and they’re separated by just a very very close tolerance on the separation between the two, and contamination of the water and moisture can cause the electrical break-down and current leakage at this point, it carbonizes the plastic insulation, micarda, or bakelite, the material that the receptacle is made out of.
Q. And what do you mean, “carbonize”, what does that mean?
A. It means it burns it, it burns it and makes it — when it burns it becomes a conductor, . . . Plastic is an excellent insulator and as it carbonizes it becomes a very good conductor and conducts current leakage which in turn melts — it will literally melt the internal components right out of a receptacle without drawing enough current to trip the circuit breaker.
Q. Alright, when you have a breakdown, when you have a carbonization did I understand you to say it melts, sir?
A. Yes sir, that’s correct, it just melts the ... it will melt the steel, it will melt the copper components.
Q. Would anything else physically happen, other than the melting?
A. It just gets red hot or white hot.
Q. Alright, and then what happens? Anything?
A. Well, the molten metal drops out of it and it will ignite anything, wood ignites it at 400 degrees Fahrenheit and so we’re talking about that copper melts it at 2000 degrees, so we know it’s at least 2000 degrees, steel at around 3000 degrees, so you’re talking about real high temperatures and we’re talking about surfaces that ignite relatively easy, the carpet that was down there and the wood frame.

The witness’s opinion of a defective design was not based solely on theory. He inspected the remains of the mobile home and eliminated to his own satisfaction all other possible electrical sources of the fire. He gave plausible reasons why he believed each particular appliance or outlet had not malfunctioned and his testimony, if believed by the triers of fact, would materially aid them in arriving at a conclusion on the issues on trial.

The fact that the expert’s opinion was not based entirely upon observation, standing alone, does not reduce his testimony to speculation. Testimony by an expert witness may be premised upon his or her personal observation or upon facts presented in a hypothetical question, see Paine, Tenn.Law of Evidence, § 176, p. 190. The witness’s opinion was based, in part, upon facts which he personally observed and the inability to examine the crucial outlet affects the weight rather than the probatory quality of his testimony.

Defendant has not cited any cases in direct support of his position, relying instead upon cases stating the general principle that verdicts may not be based upon speculation, e. g., Stinson v. Daniel, 220 Tenn. 70, 414 S.W.2d 7 (1967) and Gilreath v. So. R.R. Co., 323 F.2d 158 (6th Cir. 1963). Both cases hold that an essential fact may be proven by circumstantial evidence, and a verdict based upon such evidence is valid. “The opinion of an expert may be reduced to mere conjecture by proof of physical facts completely inconsistent therewith.” Nashville, C. and St. L. Ry. Co. v. Jackson, 187 Tenn. 202, 217, 213 S.W.2d 116 (1948), quoting Standard Oil Co. of La. v. Roach, 19 Tenn.App. 661, 94 S.W.2d 63 (1935). And “[w]here there is a conflict between expert or scientific testimony and testimony as to facts, the jury must determine the relative weight of the evidence.” Act-o-Lane Gas Service Co. v. Hall, 35 Tenn.App. 500, 509, 248 S.W.2d 398, 402 (1951).

Defendant offered no evidence to contradict or disprove the facts upon which plaintiffs’ expert relied; instead, it presented its own expert evidence to the effect that the placement of the outlet was in compliance with the Code, and other evidence tending to show the unlikelihood of moisture collecting in the area of the receptacle.

While plaintiffs’ expert offered his opinion on the probable causation and ultimate issue, it was proper under the circumstances. See Luallen v. Booher, 62 Tenn.App. 155, 460 S.W.2d 24 (1970). We conclude the assignment is without merit and are constrained to observe the defendant made no formal objection at the trial of the cáse to the crucial opinions offered by the expert witness. “No principle of law is more firmly established than . . when no objection to offered testimony or evidence is interposed, it may properly be considered and given its natural probative effect as if it were in law admissible.” Bryant v. State, 503 S.W.2d 955 at 957 (Tenn.Cr.App.1973).

The next assignment complains that the trial court erred by initially ruling defendant’s witness had not been qualified as an expert. The ruling was in response to an objection by plaintiff and, after the objection was sustained, counsel for defendant elicited further testimony from the witness concerning his experience and qualifications pertaining to the National Electrical Code. The witness then offered his opinion that the location of the receptacle in question did not violate the Code and gave his reasons supporting that conclusion.

The trial judge has broad discretion on evaluating the qualifications of an expert witness. Shelby County v. Barden, 527 S.W.2d 124 (Tenn.1975). No abuse of discretion was shown by the trial judge’s requiring additional qualifications of the expert. Moreover, the witness was allowed to state his opinion and its basis and any claimed initial error was rendered harmless.

Defendant complains of the trial court’s refusal to admit two letters into evidence and insists, without elaboration, that the letters are admissible as business records under T.C.A., § 24r-714. No offer of proof was made and, consequently, neither of the letters is in the record. Thus, any assignment based on exclusion of that proof must be overruled. Allen v. Lewis, 63 Tenn.App. 76, 469 S.W.2d 489 (1971).

Defendant insists it was error for the trial judge not to read the relevant provisions of the National Electrical Code to the jury during his charge on the issue of violation of the Code.. The trial judge, stated in his charge as follows:

There have been allegations in this case that the manufacturer was in violation of certain Governmental Standards, that is the standards set by the National Electrical Code and under certain circumstances this could constitute negligence per se, because these regulations have the effect of a statute. Now, whether a standard has been violated or not is a fact for you the jury to determine and whether a violation of that standard is the proximate cause of the damage is another question of fact for you to determine. You’ve heard the regulations read and I will not restate what those were, you’ve heard them mentioned by counsel and by the witnesses in the case.

The record establishes that the jury in the course of the trial was informed of the pertinent standards and, under the circumstances, the trial judge’s decision not to read the standard during his charge does not constitute an affirmative error.

His action, if erroneous at all, was an error of omission; there is no indication that defense counsel made any attempt to call this omission to the trial judge’s attention, as required by T.R.C.P., 51.02. Nor does it appear that any affirmative request for reading of the standards to the jury was made. In the absence of request or objection, an assignment of error predicated upon an omission in the court’s charge to the jury will be overruled. Rule v. Empire Gas Corp., 563 S.W.2d 551 (Tenn.1978).

The last two assignments complain of the Court’s inclusion of the theories of negligence and breach of warranty in his charge. Defendant argues that strict liability which was also charged has supplanted the stated theories in the field of products liability.

The assignments are without merit for several reasons. “[A] general verdict approval by the Trial Judge is not vitiated by the absence of proof on one or more counts of the declaration if there is evidence to sustain the averments of a single count.” Alex v. Armstrong, 215 Tenn. 276, 286, 385 S.W.2d 110 (1964). Thus, even if these assignments were meritorious, the error would be harmless, T.C.A., § 27 — 117, since there is material evidence of a defective condition sufficient to support a verdict on a theory of strict liability.

Strict liability has supplemented rather than eliminated the theories of negligence and breach of warranty, see Browder v. Pettigrew, 541 S.W.2d 402 (Tenn.1976), and the testimony of plaintiffs’ expert supplied material evidence on each of the theories, viz., whether the placement of the electrical receptacle in the walls abutting the bathroom violated the applicable safety code, thus constituting negligence per se; whether the location or design of the particular outlet was defective, rendering, the mobile home unmerchantable.

For the foregoing reasons, all assignments are overruled and the judgment of the trial court is affirmed. Cost of appeal will be assessed against defendant-appellant.

SANDERS and GODDARD, JJ., concur.

      . In 1972, the General Assembly enacted the Uniform Standards Code for Factory-Manufactured Mobile Homes Act. Pursuant to the authority specially granted in T.C.A., § 53-4805, the Commissioner of Insurance adopted the National Electrical Code. See Rules and Regulations of the State of Tennessee, vol. IV, Tennessee Department of Insurance, Division of Fire Prevention, chapter 0780-2-8, pp. 222-3.