Sale v. Kennedy ( 1984 )

WARD, Justice,

dissenting.

I respectfully dissent. I believe that the majority has afforded the Act a strict construction. As stated by the Supreme Court in Cameron v. Terrell & Garrett, Inc., the act was designed to protect consumers from any deceptive trade practice made in connection with the purchase or lease of any goods or services. To that end, we should give the Act, under the rule of liberal construction, its most comprehensive application possible without doing any violence to its terms. In the Cameron case, it was held that the purchasers of a house were entitled to bring a private lawsuit against the real estate agent for deceptive trade practice violations on the basis that they were consumers even though the house was not purchased from the real estate agent, and even though the sellers of the house made no representation to the purchasers. Any requirement for privity was dispensed with altogether by that holding. Here, the purchase of the group policy was made for the Plaintiff’s benefit and as one of the fringe benefits under his contract of employment. One of the Defendant’s duties in connection with the purchase of the policy was his presentation to the employees and his explanation of the terms, coverage and exclusions contained in the policy. I believe that this presentation was an integral part of the sale and that the Plaintiff qualified as a consumer. He was certainly damaged by a deceptive trade practice violation. Point of Error No. One should be overruled.

The second point of error also partially addresses the question of the Plaintiff’s status as a consumer and that portion of the point should be overruled. In addition, Sale complains that the special issue submitted failed to submit all of the fundamental elements of common law fraud. I would also overrule this portion of the point as the Defendant failed to preserve error by any objections to the charge. Rule 274, Tex.R.Civ.P. I would affirm the judgment of the trial court.