dissenting.
I dissent. The first point of error should be sustained because the trial court erred in its definition of the term “converted.” The supplemental instruction (which was given in response to the jury’s note after several hours of deliberation) is an improper comment on the evidence.
The jury should have been instructed to determine whether Cothrum exercised dominion over Turner’s personal property without Turner’s consent and to the exclusion of Turner’s right of possession and use. If the jury found that Cothrum’s use of the rig as a bargaining tool with Poe was an exercise in dominion of Turner’s property to the exclusion of Turner’s right of possession, then the jury could have found Cothrum converted Turner’s property. However, under the instruction, if the jury found that Cothrum’s actions toward Poe were wrongful, then the jury must automatically find that Cothrum converted Turner’s property. The evidence does not show that Cothrum acted inconsistent with Turner’s possession. Once notified of Turner’s claim, Cothrum took ten days to *801verify Turner’s ownership. This was not an unreasonable amount of time. But for the court’s instruction, the jury could have found that Cothrum’s action toward Turner was not conversion but merely a determination of Turner’s right to possession of the rig. Because it led the jury to but one conclusion, the court’s instruction was an improper comment on the evidence. The error was not harmless under TEX.R. APP.P. 81(b)(1).
The judgment of the trial court should be reversed, and the cause should be remanded for trial of plaintiff’s cause against Cothrum Drilling Company, Cothrum-Rice Company, S.E. Cothrum, and S. Theis Rice.