author: YOUNG, Justice.

text:
    BRISTOL-MYERS COMPANY, Appellant, v. Ramon GONZALES et al., Appellees.
    No. 1016.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 30, 1976.
    Rehearing Denied Feb. 17, 1977.
    Second Motions for Rehearing Denied Feb. 28 and March 10, 1977.

      William L. Garwood, Austin, Finley L. Edmonds, Meredith & Donnell, Corpus Christi, for appellant.
    Harry F. Maddin, Allison, Maddin, White & Brin, William R. Edwards, Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

In this products liability case, Bristol-Myers Company, defendant below, appeals from an $800,000 judgment against it and in favor of Ramon Gonzales, plaintiff below, for plaintiff’s deafness allegedly resulting from claimed inadequacies in the warnings given by Bristol concerning its prescription drug “Kantrex”. The judgment also denied Bristol any indemnity or contribution against the prescribing and treating physician, Dr. Rufino H. Gonzalez, cross-defendant below.

This suit originally sought recovery aghinst Bristol, the manufacturer of Kan-trex (kanamycin sulfate), the Upjohn Company, the manufacturer of Mycifradin (neo-mycin sulfate), and Dr. Gonzalez, for .total, irreversible, bilateral deafness brought about by treatment with those drugs for a hip infection while in Memorial Medical Center in Corpus Christi, Texas, in December 1970 and January 1971. The liability of Bristol and Upjohn was claimed to be predicated on their failure to provide adequate warnings and instructions for the safe use of their drugs to the physician and for affirmative misrepresentation with regard to the use of such drugs under theories of negligence and strict products liability [Sections 402A and 402B of the Restatement (Second) of Torts] and on Dr. Gonzalez for negligence in his treatment of plaintiff with the drugs. Prior to trial, plaintiff compromised his claims against Dr. Gonzalez for $100,000.00. He then non-suited both Dr. Gonzalez and Upjohn.

Bristol denied plaintiffs claims and filed a cross-claim against Dr. Gonzalez alleging as defenses negligence and misuse of its drug Kantrex in treating plaintiff, and requesting indemnity or contribution from the physician. In turn, Dr. Gonzalez filed a third-party complaint against Bristol and Upjohn for misrepresentation and inadequate warnings as to the use of its drugs, requesting indemnity and contribution from the manufacturers, but prior to trial he non-suited Upjohn.

In that posture, plaintiff, Dr. Gonzalez and Bristol (the three parties before this Court) went to trial before a jury that found in answer to special issues: 1) that in the 1970 PDR (Physicians’ Desk Reference) Bristol failed to give Dr. Gonzalez adequate warnings or instructions (as defined in the charge of the court) with respect to the use of Kantrex; 2) that such failure was a producing cause of plaintiff’s deafness; 3) that the statement “Kantrex injection (ka-namycin sulfate injection) in concentrations of 0.25 percent in abscess cavities” reasonably implied to Dr. Gonzalez that he could use the drug in such concentration for the irrigation on plaintiff without fear of hearing damage; 4) that Dr. Gonzalez relied on that statement; 5) that the statement was false; 6) that reliance on that false statement was a producing cause of plaintiff’s deafness; 7) that Dr. Gonzalez failed to use ordinary care (as defined in the charge of the court) in treating plaintiff; 8) that such failure was a proximate cause of plaintiff’s deafness; and 9) that plaintiffs damages for loss of hearing were $800,000.00.

The trial court, having previously overruled Bristol’s motions for directed verdict at the close of all the evidence, thereafter entered judgment on the verdict in favor of plaintiff and against Bristol in the amount of $800,000.00 and overruled Bristol’s motion for judgment N.O.V. and alternative motions on the verdict for indemnity or contribution from Dr. Gonzalez. Bristol’s amended motion for new trial was likewise overruled. Bristol appeals from that judgment.

A fair summary of the background facts shows these events and circumstances. On November 22, 1970, appellee Ramon Gonzales, then 25 years old, was admitted to Memorial Medical Center, Corpus Christi, Texas, by Dr. Gonzalez, an orthopedist. Ramon had been complaining of pain in his left hip and knee. After some tests, Dr. Gonzalez diagnosed infection in Ramon’s hip. On December 20th, Dr. Gonzalez started Ramon on Kantrex tablets. On December 22nd, he changed the administration of Kantrex to intramuscular injection, and between December 22nd and January 5, 1971, a total of 20.5 grams of Kantrex was administered in this way. Dr. Gonzalez performed surgery on Ramon’s infected hip on December 23rd. Beginning on that day and continuing to January 4,1971, the wound in Ramon’s hip was subjected to continuous irrigation (or washing) with alternating solutions of Bristol’s Kantrex and Upjohn’s neomycin sulfate.

Both Bristol’s Kantrex and Upjohn’s neo-mycin were known to be “ototoxic” (having potential to cause deafness). The mechanical way in which each drug affects hearing (damage to the eighth cranial nerve) is the same. It is not disputed the some portion of the Kantrex and neomycin used in the irrigation was absorbed in the blood and that the cumulative effect of all those oto-toxic drugs in the blood, the unknown amount of absorbed Kantrex and neomycin plus the injected Kantrex, resulted in Ramon’s deafness.

The literature which Dr. Gonzalez consulted regarding the use of Kantrex at the time of treatment was Bristol’s insert for Kantrex injection in the 1970 PDR (Physicians’ Desk Reference).

In any event, by the time Ramon was taken off the two drugs on January 5th, damage had been done to his hearing. By February, he was totally and permanently deaf.

Appellant has brought forward 38 points of error. It has, however, summarized the points into categories for purposes of argument. We will use appellant’s format, generally, in considering its contentions. Among appellant’s points of error are several legal insufficiency points (“no evidence” and “as a matter of law”). With each such point, we shall view the evidence in a light most favorable in support of the jury findings and consider only the evidence and inferences which support the findings and reject the evidence and inferences contrary to the findings. Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.Sup.1975). In considering the appellant’s factual insufficiency points of error (“insufficient evidence” and “against the great weight and preponderance of the evidence”), we shall examine the whole record to determine whether the evidence supports the jury findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In its first category (points 1, 2, 3 and 4), Bristol contends that recovery is not sustainable under Section 402A, Restatement of Torts (Second) because Dr. Gonzalez misused Kantrex and because Bristol complied with Federal Food and Drug Administration requirements; the warning therefore was adequate as a matter of law. Primarily, Bristol attacks the jury findings favorable to Ramon in special issues 1 (inadequate warning) and 2 (producing cause).

For misuse to be a defense, the supplier must show that the use which caused the injury was not reasonably foreseeable. Heil Co. v. Grant, 534 S.W.2d 916 (Tex.Civ.App., Tyler 1976, writ ref’d n.r.e.). And if the injury resulting from foreseeable misuse of a product is one which an adequate warning concerning the use of the product would likely prevent, such misuse is no defense. Bituminous Casualty Corporation v. Black and Decker Manufacturing Co., 518 S.W.2d 868 (Tex.Civ.App., Dallas 1974, writ ref’d n.r.e.).

In the 1970 PDR, the appellant Bristol stated:

“Other Routes of Administration: Kan-trex injection ... in concentrations of 0.25 per cent (2.5 mg./ml.) has been used satisfactorily as an irrigating solution in abscess cavities, pleural space, peritoneal and ventricular cavities.” (Emphasis supplied.)

Without further clarification about what type of irrigation was appropriate, the jury was entitled to infer that Bristol left the door open for a treating physician to use Kantrex as a continuous irrigant. The testimony of Dr. Jones, a witness for Bristol, showed that Bristol intended Kantrex to be used only as a one-time washing of surgical wounds, not as a continuous irrigation. The foregoing demonstrates a reasonable inference that continuous irrigation with Kantrex was reasonably foreseeable because of the statement by Bristol in the 1970 PDR and that the warning was not adequate against using Kantrex as a continuous irrigant. Bristol’s misuse as a matter of law contention is without merit.

We now consider Bristol’s contention that its warning in the 1970 PDR was adequate as a matter of law because it complied with FDA requirements. In that regard, we deem applicable the reasoning in Rumsey v. Freeway Manor Minimax, 423 S.W.2d 387 (Tex.Civ.App., Houston [1st Dist.] 1968, no writ). In Rumsey, the defendant claimed no liability because he had complied with the respective State and Federal Acts and his label had been approved by the appropriate governmental agencies. The Court of Civil Appeals there said:

“. . . Neither the State nor the Federal Act purports to change to the common law duty to warn. It merely authorizes the marketing of specified economic poisons if the statutes and the regulations promulgated are complied with. Neither Act purports to deal with property rights. It makes it a crime to market such a product without complying with the Act. Failure to comply with the Act would be negligence per se. However, a mere compliance does not as a matter of law, in all cases, mean that the party is free from negligence. . . . Whether there is negligence depends on the facts of each case. We are of the view that the statutes and regulations by the agencies merely set minimum standards. Compliance with the standards is evidence on the issue of negligence.”

See Muncy v. Magnolia Chemical Company, 437 S.W.2d 15 (Tex.Civ.App., Amarillo 1968, writ ref’d n.r.e.). Bristol’s contention that its warning was adequate as a matter of law because it complied with F.D.A. requirements is overruled.

Continuing about appellant’s first category, we will discuss the assertions of no evidence and against the great weight and preponderance of the evidence relating to the findings of special issues 1 (inadequate warning) and 2 (producing cause).

A manufacturer of a product, which to his actual or constructive knowledge involves danger to potential users has a duty to give an adequate warning of such danger. Crocker v. Winthrop Laboratories, Division of Sterling Drug, Inc., 514 S.W.2d 429 (Tex.Sup.1974); Muncy v. Magnolia Chemical Company, supra. Where a product contains highly toxic or dangerous ingredients which are not obvious to the typical user, there is a duty on the part of the manufacturer to give an adequate warning of such dangers. In Muncy v. Magnolia Chemical Company, supra, adequate warning has been defined as follows:

“. . . (1) it must be in such form that it could reasonably be expected to catch the attention of the reasonably prudent man in the circumstances of its use; (2) the content of the warning must be of such a nature as to be comprehensible to the average user and to convey a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person. . . . the question of whether or not a given warning is legally sufficient depends upon the language used and the impression that such language is calculated to make upon the mind of the average user of the product.
Implicit in the duty to warn is the duty to warn with a degree of intensity that would cause a reasonable man to exercise . the caution commensurate with the potential danger. ... A clear cautionary statement setting forth the exact nature of the dangers involved would be necessary to fully protect the seller. . . .” (Emphasis supplied.)

See Bituminous Casualty Corporation v. Black and Decker Manufacturing, supra.

The form of Bristol’s warning was questioned when evidence was introduced showing that Supplement D of the 1970 PDR, and all warnings thereafter, were switched to boxed warnings. In the same light, there is new emphasis provided by Bristol’s incorporation of all the warnings and side effects in the box warning at the first of Supplement D, and in all warnings thereafter, rather than intertwining them throughout the entire body as was done in the 1970 PDR.

Challenges to the adequacy of the 1970 PDR’s content were raised by introduction of Bristol’s pleading and new drug application on tuberculosis. In both of these instances, Bristol stated that audiometric testing was mandatory and in the pleadings, Bristol stated that kidney testing was mandatory. Nowhere in the 1970 PDR Kantrex insert is the need for either of these tests stated in mandatory terms.

Bristol also recommended Kantrex for use as an irrigant in abscess wounds without specifying what type of irrigation was proper. The 1971 PDR stated that in determining the total dose all routes of administration should be taken into account, whereas the 1970 PDR contains no comparable statement. Further comparison with the 1971 PDR shows that the 1970 PDR contained no instructions requiring stoppage of drug therapy after the first dose to check for kidney damage. All references to warnings placed in the 1971 PDR, and those thereafter, have added emphasis based upon the statement of Dr. Jones, Associate Director of Medical Services for Bristol, that the information Bristol now has it had as early as 1967.

Dr. Grollman and Dr. Isensee, expert witnesses for appellee, testified that it was improper to use Kantrex where other less toxic drugs are available. Each witness further testified that this information was not contained within the 1970 PDR.

Standing between proof of a failure to warn and ultimate recovery is the necessity of proof of causation between failure to warn and the injury. Menking v. Bishman Manufacturing Company, 496 S.W.2d 762 (Tex.Civ.App., Corpus Christi 1973, no writ). Special issue 2 of the charge addresses this issue and the jury found that there was causation. We find that the jury’s determination on this issue is adequately supported by evidence. Dr. Grollman and Dr. Isensee testified that use of Kantrex when other less toxic drugs were available was totally wrong and this information was necessary if Kantrex was to be used safely. Dr. Gonzalez testified that if he had known that use of Kantrex was totally wrong when other less dangerous antibiotics were available, he would have used a different drug.

Dr. Gonzalez further testified that he decided to use Kantrex based upon the following statement contained in the 1970 PDR.

“Kantrex Injection ... in concentrations of 0.25 per cent . . . has been used satisfactorily as an irrigating solution in abscess cavities, plueral space, peritoneal and ventricular cavities.”

This statement was bolstered by the testimony of all the physician witnesses who stated that irrigation encompassed several methods including the type administered by Dr. Gonzalez to the plaintiff. Dr. Gonzalez said that although he knew of the ototoxic propensities of Kantrex when injected in-tramuscularly, he did not know of such propensities when Kantrex was used as an irrigant. He also believed that absorption was minimal from irrigation and that he did not know that it was necessary to take into account such amounts in determining ototoxic reactions. Dr. Gonzalez was of the opinion that the use of Kantrex without this information was unreasonably dangerous and he said that if he had known these facts when treating plaintiff, he would have decreased or stopped the use of Kan-trex. Dr. Isensee was in agreement when he testified that the lack of information concerning absorption created an unreasonable risk of harm to the patient and that in the present case, such lack of knowledge was in all probability a contributing cause.

Further testimony of Dr. Gonzalez showed that he was unaware of the necessity to discontinue Kantrex after the first injection to test for kidney damage. He felt that use of Kantrex without this information created unreasonable risk to the patient and that if he had known this fact, he would have run the necessary tests.

In summation, it appears clear to this Court that the answers to special issues 1 and 2 of the charge are supported by legally and factually sufficient evidence. Appellant’s first four points of error are overruled.

In its second category (points 5 through 10), Bristol argues that recovery is not sustainable under Section 402B, Restatement of Torts (Second) in respect to the PDR statement about irrigation. Basically, Bristol complains that the evidence supporting the jury findings in special issues 3, 4, 5 and 6 was legally and factually insufficient.

For Ramon to recover under this section of the Restatement, Bristol’s statement in the PDR that “Kantrex injection (kanamycin sulfact injection) in concentrations of 0.25 percent (2.5 mg./ml.) has been used satisfactorily as an irrigating solution in abscess cavities,” must be a misrepresentation of a material fact upon which the plaintiff justifiably relied to his injury. Crocker v. Winthrop Laboratories, Division of Sterling Drug, Inc., supra; Technical Chemical Company v. Jacobs, 480 S.W.2d 602 (Tex.Sup.1972). A Federal Court applying Texas Law stated that where a manufacturer states that a product can be used in a certain manner then the user is justified in interpreting that the product can be used safely in that manner. Franks v. National Dairy Products, 282 F.Supp. 528 (W.D.Tex.1968), affirmed, 414 F.2d 682 (5th Cir.1969).

The testimony of all physicians during the trial reflected that the 1970 PDR statement was positive assertion that a prescribing physician could use Kantrex as a continuous irrigant. The testimony of Dr. Isensee, plaintiff’s witness and head of Memorial Medical Center’s staff, was probative on the issue of misrepresentation. He specifically understood the statement to be an affirmative representation that it was proper to use Kantrex as a continuous irri-gant. He further testified to the extent that the 1970 PDR does not mean that a prescribing physician can use Kantrex satisfactorily in continuous irrigation it was defective, misleading and false. Dr. Gonzalez testified that his decision to use Kantrex as a continuous irrigant was partially based upon the recommendation in the 1970 PDR.

Appellant contends that the statement is not a producing cause because it must be taken into account with the whole of the 1970 PDR and that the statement is true because Kantrex has been used satisfactorily as an irrigant in post-surgical one time washes. This, however, is not the issue. The statement was a misrepresentation which Dr. Gonzalez justifiably relied upon and whether it was a producing cause relates to the use of Kantrex as a continuous irrigant.

The testimony of Dr. Jones and Dr. Lane indicated that Bristol did not know whether Kantrex could be absorbed in measurably quantities so as to create a risk ototoxic poisoning when used in continuous irrigation. Dr. Jones, however, on cross examination stated that significant amounts of Kantrex could be absorbed in irrigation. The National Academy of Sciences and National Research Council in 1969 criticized this statement because it failed to emphasize potential toxicity from absorption and because the concentration suggested for irrigation was excessive. Bristol, nevertheless, continued to state that Kantrex could be used as an irrigant when in fact it meant for one time post-surgical wash.

Dr. Gonzalez testified that he was unaware of the ototoxic qualities of Kantrex when used as an irrigant. He also testified that if the ototoxic propensities of Kantrex as an irrigant were unknown that use of Kantrex as a continuous irrigant involved an unreasonable danger to the patient; that if he had known these facts, he would not have used Kantrex as an irrigant or would have reduced the concentration. Dr. Isensee confirmed this testimony by agreeing that the use of Kantrex without information on absorption was unreasonably dangerous.

In view of these principles and the facts set out to which they apply, we find that evidence justified the trial court’s questions 3 through 6 to the jury. We also conclude from an analysis of the evidence that the jury’s answers to these questions were supported by legally and factually sufficient evidence. Appellant’s points of error 5 through 10 are overruled.

Next, we consider as a group appellant’s points of error complaining of errors in the trial court’s charge. In that regard, where a motion for new trial is required to perfect appeal, the appellate courts can consider complaints raised only by the assignments of errors within the motion for new trial. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407 (1943). Unless the error is fundamental, the appellant waives the right to complain of any ruling not assigned as error. State Farm Mutual Automobile Insurance Company v. Cowley, 468 S.W.2d 353 (Tex.Sup.1971).

Rules 320, 321, 322 and 374, T.R. C.P., govern the form of the assignments of error which form the basis for appeal. Rule 320 provides that a motion “shall specify each ground on which it is founded, and no ground not specified shall be considered.” Rule 321 requires that the assignments refer to the action of court complained of “in such way as that the point of objection can be clearly identified and understood by the court.” Rule 322 directs that “Grounds of objection couched in general terms . shall not be considered by the court.” Rule 374 provides that “A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived.” Although Rule 1 states that rules are to be given a liberal construction, Rules 320, 321, 322 and 374 were nevertheless adopted to serve a useful purpose. There must be substantial compliance with these rules if a litigant is to have his points of error considered by an appellate court.

Appellant’s 11th, 12th, 13th, 14th, 15th, 17th and 36th points of error complain of errors in the charge. Appellee asserts that these assignments of error are too general to warrant consideration by the Court. We agree.

Each of appellant’s complaints is addressed either to the form of an issue submitted or to a definition used to preface a submitted issue. The objection to these submissions are contained in paragraphs 58, 59, 60, 52, 57, 53 and 61, respectively, of appellant’s motion for new trial. Each paragraph is couched in the same general terms of paragraphs 52 and 57 set out as follows:

“52. The trial court erred in overruling the defendant’s objections to the definition of the term ‘adequate warning or instructions’ as used in the Charge of the Court.”
⅝ ⅛ ⅜ ⅝: ¾5 ⅜
“57. The trial court erred in overruling the defendant’s objections to Question One of the Charge of the Court.”

The other above mentioned paragraphs vary from the quoted paragraphs only as to the question or definition objected to. None of the assignments of error distinctly pointed out to the trial court the matter claimed as error. The assignments of error do not comply with rules of civil procedure and appellant’s points of error are waived. Wagner v. Foster, supra; J. Weingarten, Inc. v. Moore, 449 S.W.2d 452 (Tex.Sup.1970); Hardy v. C.P.I. Sales, Inc., 511 S.W.2d 89 (Tex.Civ.App., Houston [1st Dist.] 1974, no writ); Carr v. Gregory, 472 S.W.2d 819 (Tex.Civ.App., Corpus Christi 1971, no writ); South Texas Natural Gas Gathering Company v. Guerra, 469 S.W.2d 899 (Tex.Civ.App., Corpus Christi 1971, writ ref’d n. r. e.). Appellant’s points 11, 12, 13, 14, 15, 17 and 36 are overruled.

Appellant’s point of error 18 complains of the trial court’s failure to enter an order granting indemnity to Bristol against Dr. Gonzalez. In the alternative, appellant claims that it should have been granted contribution from Dr. Gonzalez as asserted in its point 19. We sustain the contribution point, but overrule the indemnity point.

The general rule of contribution is that where two or more persons concur in producing a single indivisible injury, then such persons are jointly and severally liable although no common duty, common design, or concerted action exists. Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563 (1949); South Austin Drive-In Theatre v. Thomison, 421 S.W.2d 933 (Tex.Civ.App., Austin 1967, writ ref’d n. r. e.).

In Austin Road Co., we find the following:

“The evidence and jury findings herein clearly convict each of the tortfeasors of wrongful conduct which joined and concurred in bringing about the injury. Each party did more than merely create a condition under which the other negligently acted. The negligent conduct of each was a proximate cause of the collision and the injury inflicted was by their joint and concerted action. The act of neither was the sole proximate cause. . Either one or both might have prevented the wrong. Neither did. Each owed the other the same due care, and each owed the duty to exercise ordinary care for the safety of the injured party. Both violated these duties. Consequently, each was guilty of the same quality of negligence toward the injured workman. Thus they stand in pari delicto with each other and must, under the statute, share equally the burdens arising from their wrongful conduct.”

This statement is analogous to the case at bar. There is independently produced fault by both Bristol and Dr. Gonzalez with both concurring to cause Ramon’s injuries.

The jury found Dr. Gonzalez’ actions to be negligent and a proximate cause of Ramon’s injuries. These findings are clearly supported by the evidence. Dr. Gonzalez administered intramuscularly an amount well over the recommended dosage. The therapy was not stopped when there was no clinical response within five days or after the first appearance of tinnitus (ringing in the ears). All signs of kidney damage were ignored. Neomycin was used in concentrations which exceeded the recommended dosage for irrigation. The evidence further established that these failures were a proximate cause of Ramon’s injuries.

There is, however, no case law in Texas that has been brought to our attention specifically dealing with the right of contribution where liability is based upon strict liability under Sections 402A and 402B of the Restatement of Torts (Second) and where a third party is found negligent. Even so, we believe that there is a right of contribution in such a situation based upon the following analysis.

Tex.Rev.Civ.Stat.Ann. art. 2212 states that there is a right of contribution among joint tortfeasors where the cause of action is based on “tort”. Comments (b) and (d) of the Restatement of Torts (Second) Section 402A and 402B, respectively, indicate that a cause of action so based (strict liability) is a cause of action in tort. In Ford Motor Company v. Russeil & Smith Ford Company, 474 S.W.2d 549, 561 (Tex.Civ.App., Houston [14th Dist.] 1971, no writ), the Court said: “. . .A tort generally embraces the theory of wrong independent of contract, or as a breach of duty that the law, as distinguished from contract, has imposed. See 55 Tex.Jur.2d Torts, Sec. 1, p. 624 (1964).” Therefore, Sections 402A and 402B should be included in Article 2212.

In that Texas has adopted 402A and 402B of the Restatement of Torts (Second), an injured plaintiff in Texas is now relieved of the burden of proving that a manufacturer or seller was negligent in the manufacturing or selling of a defective product. The plaintiff’s burden has thus been reduced to proving injury from the defect and that the product was defective when it left the manufacturer’s or seller’s hands. This reduced burden insures that the costs of the injuries resulting from defective products are borne by the marketer of the product rather than the injured person, who is powerless to protect himself. Strict liability in tort, thus, becomes a vehicle of social policy by looking to the protection of the public. 63 Am. Jur.2d Products Liability, Sec. 123. There is, however, no apparent reason to protect a negligent third person who contributes to a plaintiff’s injuries. To allow contribution from the negligent third party in no way undermines the policy considerations behind 402A and 402B of the Restatement. Prior to the adoption of 402A and 402B of the Restatement, a manufacturer liable for its negligence had a right of contribution against a third party who was also negligent. Gulf, Colorado & Santa Fe Railway Co. v. Bliss, 368 S.W.2d 594 (Tex.Sup.1963); South Austin Drive-In Theatre v. Thomison, supra.

Sections 402A and 402B were adopted to insure that a person injured by a defective product was protected through strict liability. To hold, also, that these sections deprive a manufacturer or seller of a right of contribution from a negligent third party, contributing to the plaintiff’s injury, would go beyond the sound policy considerations upon which these sections are founded.

In support of this position, we look to the cases of Ford Motor Company v. Russell & Smith Ford Company, supra and Walters v. Hiab Hydraulics, Inc., et a1, 356 F.Supp. 1000 (D.C.Md.Pa.1973). In these cases, the respective courts resolved this same issue in favor of granting contribution. See Chamberlain v. Carborundum Company, 485 F.2d 31 (3rd Cir.1973); Automobile Club Insurance Company v. Toyota Motor Sales, 531 P.2d 1337 (Mont.1975); Ford Motor Company v. Robert J. Poeschl, Inc., 21 Cal.App.3d 694, 98 Cal.Rptr. 702 (1972); Northwestern Mutual Insurance Co. v. Stromme, 4 Wash. App. 85, 479 P.2d 554 (1971); Adler Quality Bakery, Inc. v. Gaseteria, 32 N.J. 55, 159 A.2d 97 (1960).

In contradiction to appellant’s right of contribution, appellees assert that Dr. Gonzalez is entitled to indemnity from Bristol under the following rule of Austin Road Co. v. Pope, supra:

“. . .In order to determine whether the loss should be shifted from one tort-feasor to another the proper approach is to consider the one seeking indemnity as though he were a plaintiff suing the other in tort, and then determine whether such a one as plaintiff, though guilty of a wrong against a third person, is nevertheless entitled to recover against his co-tortfeasor.”

Applying this rule, does Bristol owe Dr. Gonzalez any duty with respect to its warning? We think not. Under 402A and 402B, Bristol’s duty is to the user or consumer of the drug. That individual is Ramon Gonzales. Bristol’s warning is judged on its ability to communicate the danger in using Kantrex to a physician. There is no duty owed by Bristol to the physician other than to communicate the danger of the using of Kantrex. Gravis v. Parke-Davis & Co., supra.

We hold, therefore, that contribution under the statute was proper and we reform the judgment of the trial court to hold Dr. Gonzalez liable to Bristol for one-half of the amount of the judgment. Gulf, Colorado & Santa Fe Railway Co. v. Bliss, supra; Austin Road Co. v. Pope, supra. The evidence and jury findings clearly convict each of the tortfeasors of wrongful conduct which joined and concurred in bringing about Ramon’s injuries. For the foregoing reasons, we sustain appellant’s point 19 and overrule its point 18.

All of which brings us to a group of points wherein the appellant complains of the trial court’s admission of evidence offered by the appellees over the objection of the appellant and the exclusion of evidence offered by the appellant upon the objection of the appellees.

We deem it appropriate to note here that to obtain reversal of a judgment based upon an error of the trial judge, the appellant has a two-pronged burden. First, he must show that the trial judge’s determination was in fact error; second, that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Southwestern Greyhound Lines, Inc. v. Dickson, 149 Tex. 599, 236 S.W.2d 115 (1951); Wilson v. City of Port Lavaca, 407 S.W.2d 325 (Tex.Civ.App., Corpus Christi 1966, writ ref’d n. r. e.); Rule 434, T.R.C.P. (1976).

Appellant’s point 16 complains of the exclusion from evidence of Supplemental I) of the 1970 PDR. Appellee contends, in response, that if it was error, it was harmless error. We agree. Appellant contends that Supplement D was superior to the 1970 PDR warning about Kantrex. This contention is supported by the evidence. Appellant, however, fails to note that the Supplement still contains the statement recommending Kantrex for use as an irrigant. This statement is the basis of appellant’s liability under 402B of the Restatement of Torts (Second). Consequently, the exclusion of this Supplement is rendered harmless because of appellant’s identical liability under 402B of the Restatement.

In its point 20, appellant complains of the trial court’s exclusion of the settlement agreement between Ramon Gonzales and Dr. Rufino Gonzalez. Appellant asserts that this evidence would reflect upon the credibility of Dr. Gonzalez by showing the true alignment of the parties. We hold that it was not error to exclude the agreements on the authority of: Texaco, Inc. v. Pursley, 527 S.W.2d 236 (Tex.Civ.App., Eastland 1975, writ ref’d n. r. e.); Petco Corporation v. Plummer, 392 S.W.2d 163 (Tex.Civ.App., Dallas 1965, writ ref’d n. r. e.); Skyline Cab Company v. Bradley, 325 S.W.2d 176 (Tex.Civ.App., Houston 1959, writ ref’d n. r. e.). In each of these cases evidence of settlements between parties was excluded and the appellate court affirmed the decision holding the evidence inadmissible.

Even if the evidence as offered was admissible, as claimed, it was harmless error. We find no showing that the exclusion of the settlement agreement was reasonably calculated to and probably did result in the rendition of an improper judgment. This is especially so where the jury found Dr. Gonzalez negligent and where there was other expert testimony reflecting on the inadequacy of Bristol’s warning. Petco Corporation v. Plummer, supra.

Appellant’s points 21 and 22 complain of the exclusion of the abandoned pleadings of appellee, Ramon Gonzales. We find the exclusion to be error, but we find the error harmless.

Abandoned pleadings are admissible as declarations or admissions against interests. Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726 (1941); Bolin Oil Company v. M. W. Staples, 496 S.W.2d 167 (Tex.Civ.App., Fort Worth 1973, writ ref’d n. r. e.). The trial court was, therefore, in error when it failed to allow the introduction of plaintiff’s abandoned pleadings. As noted earlier, showing error is only the first step in appellant’s burden. Appellant must also show that the exclusion of evidence was reasonably calculated to and probably did result in an improper judgment. There is no such showing here.

Appellant’s point 23 complains of the trial court’s exclusion of 1970 PDR warning on neomycin. We find that the appellant has failed to carry his burden of showing that this exclusion probably caused the rendition of an improper verdict and thus find the error harmless.

Appellant complains in his points 24 and 25 that the trial court erred in admitting PX-4 through PX-17, superseded Official Package Inserts of Kantrex, and PX-25 through 31, 35 through 54, 32, 33, and 34, appellant’s advertising materials. Appellant would have this Court hold that these materials were irrelevant because Dr. Gonzalez never consulted these inserts and materials and they had been superseded by the 1970 insert. We do not agree that these inserts are irrelevant. The testimony of Mr. Lannon, Director of Regulatory Affairs for Bristol, showed these inserts to represent the knowledge of Bristol on Kantrex and the communication of such knowledge to users. In Crocker v. Winthrop Laboratories, Division of Sterling Drug, Inc., supra, the Supreme Court held that a manufacturer must give an adequate warning if it knows or should know of any potential harm to users. Therefore, the inclusion of evidence which shows the information within a manufacturer’s knowledge is relevant.

Appellant complains in its point 26 of the introduction into evidence of PX-21, XDX-2 and 4, subsequent Official Package Inserts, as evidence of subsequent precautionary measures. In this jurisdiction, the admission of such evidence is discouraged because it is thought that it discourages repairs. It is also true that such evidence is admissible as rebuttal evidence, to show a defect could be remedied, or to explain other evidence. Simms v. Southwest Texas Methodist Hospital, 535 S.W.2d 192 (Tex.Civ.App., San Antonio 1976, writ ref’d n. r. e.); 2 McCormick & Ray, Texas Evidence, § 1151, p. 43 (1956).

Dr. Jones stated that Bristol’s present knowledge with regard to Kantrex has not changed since 1967. Couple this fact with subsequent changes in the Kan-trex warning and there is a clear indication that the defect in the 1970 PDR could have been cured.

Even if this evidence is inadmissible, the error is harmless or waived. Insofar as these inserts are offered to prove Bristol’s knowledge of the harmful propensities of Kantrex, they appear to be cumulative. Appellee introduced testimony and physical evidence which showed the 1970 PDR warning as inadequate. Therefore, the introduction of these inserts could not be found as reasonably calculated to and to have probably caused the rendition of an improper judgment.

As a general rule, an objecting party will not be permitted on appeal to complain of a valid grounds of objection which he did not urge at the time of objection. 2 McCormick & Ray, Op. cit, § 25, p. 24; and cases cited therein. Appellant’s objection to these inserts was a general objection based on relevancy and therefore waived the right to complain of the error as now asserted. De-Garcia v. Galvan, 55 Tex. 53 (Tex.Sup.1881); Mueller v. Central Power & Light Company, 403 S.W.2d 901 (Tex.Civ.App., Corpus Christi 1966, no writ).

In its points 27, 28 and 29, appellant complains of further inadmissible evidence. Under the authority of Crocker v. Winthrop Laboratories, supra, a manufacturer is under a duty to give adequate warning for those dangers of which it is aware. Clearly, XDX-3 (Jan. 10,1970, Federal Register), and PX-23, (NAS/NRC Drug Efficiency Study), and PX-3 (Study on the use of Kantrex in treating tuberculosis) are probative evidence as to Bristol’s knowledge on Kantrex and are admissible.

Appellant asserts that PX-23 and XDX-3 are both inadmissible as hearsay. Hearsay is inadmissible when it is offered for the truth of the statements contained therein. Sanders v. Worthington, 382 S.W.2d 910 (Tex.Sup.1964). See Wig-more on Evidence, 3rd ed. (1940), §§ 1745, 1766-67. These exhibits were not offered for the truth of the matters contained therein. They were offered to show that Bristol had certain knowledge prior to the issuance of the 1970 Kantrex warning.

Where evidence is admissible for one purpose but inadmissible for another, it may be admitted for the purpose for which it is competent. 23 Tex.Jur.2d, § 122 (1961). The court must upon the motion of a party limit the evidence to its proper purposes. In the absence of such a motion, the right to complain of the improper purpose is waived. Citadel Construction Company v. Smith, 488 S.W.2d 283 (Tex.Civ.App., Austin 1972, writ ref’d n. r. e.); Eubanks v. Winn, 469 S.W.2d 292 (Tex.Civ.App., Houston [14th Dist.] 1971, writ ref’d n. r. e.). Appellant’s failure to ask for limiting instruction as to the truth of the matters contained in the exhibits waived his right to complain of the improper purpose of these exhibits by the jury.

Appellant complains in point 30 that it was error to allow Dr. Richard Austin to testify about the meaning of words in the 1970 and 1972 warning on Kantrex. Appellant asserts that such testimony was inadmissible because Dr. Austin was not an expert in the area of medical terminology and his testimony invaded the province of the jury. We agree in part and disagree in part, but we do find that testimony improperly admitted was harmless error.

The testimony of Dr. Austin is divisible into categories. The first category involves interpretation of the 1970 and 1972 Kantrex warning as reflected by statements concerning the number of times “ototoxicity” appeared in the warnings. The second category involves the plain meaning of certain words as is reflected by Dr. Austin’s interpretation of the word “should”.

As a general rule, where the tribunal is in possession of the same information as the witness and the latter’s testimony adds nothing to that information, his testimony is unnecessary and in fact encumbers the proceedings. Cooper v. State, 23 Tex. 331 (Tex.Sup.1859). Clearly, the boldness of the print or the number of times a word occurs in a warning is information possessed by the jury and to which Dr. Austin’s testimony adds nothing. It was error for the trial court not to have excluded such testimony. We, however, do not find the inclusion of such evidence to have, in all probability, led to the rendition of an improper judgment and we find the error to be harmless.

The second category is interpreted to be expert testimony. The admission of expert testimony is based upon the witness’ special knowledge gained through his experience or schooling which the jury does not have and, therefore, the expert is better equipped to draw a conclusion on the subject than the jurors. 2 McCormick & Ray, op. cit. § 1400, p. 233. Dr. Austin’s qualifications reflect that his experience and training include the efficiency of communications, the manner in which persons perceive communication between people and the impact of words on people.

In Bituminous Casualty Corporation v. Black and Decker Manufacturing Co., supra, the court stated: “. . . the question of whether or not a given warning is legally sufficient depends upon the language used and the impression that such language is calculated to make upon . the average user of the product.” The “average user” in this instance is the physician and not the patient; Bristol’s warning is directed, therefore, to the physician. Gravis v. Parke-Davis & Co., 502 S.W.2d 863 (Tex.Civ.App., Corpus Christi 1973, writ ref’d n. r. e.). The testimony of Dr. Austin is relevant, however, on the impact of the warning in view of the holding in Bituminous Casualty Corporation and the wide discretion of a trial judge about the admission of expert testimony. 2 McCormick & Ray, op. cit. § 1481, p. 328.

Appellant’s point 31 complains of the admission of leading questions directed to Dr. Fordtran. We find the admission of such questions to be harmless error because there is no showing that such questions probably led to the rendition of an improper judgment.

Appellant asserts in his point 32 that the trial court erred in allowing cross-examination of Dr. Jones and Dr. Isensee, but not Dr. Gonzalez with the use of the medical text Goodman & Gillman. In Bowles v. Bourdon, 149 Tex. 1, 219 S.W.2d 779 (1949), the Supreme Court held that a standard medical text cannot be introduced as direct evidence but where a physician testifies to disease or injury as an expert and he recognizes a medical text as authority, excerpts may be read from the text to discredit or test the weight of his testimony. Seeley v. Eaton, 506 S.W.2d 719 (Tex.Civ.App., Houston [14th Dist.] 1974, writ ref’d n. r. e.). Dr. Jones, Dr. Isensee and Dr. Gonzalez all recognized Goodman & Gillman as authority. Therefore, cross-examination based upon the text was permissible as to each doctor. The trial court’s refusal to allow cross-examination of Dr. Gonzalez based upon Goodman & Gillman was error. This error was rendered harmless though when the jury found Dr. Gonzalez negligent.

In its point 33, appellant contends that the testimony of Dr. Thomas Mayor, economist, was speculative and, therefore, inadmissible. We believe that our recent holding in Borak v. Bridge, 524 S.W.2d 773 (Tex.Civ.App., Corpus Christi 1975, writ ref’d n. r. e.) is controlling about the admissibility of the type of evidence complained of here. The appellant’s contention, therefore, is without merit.

Appellant’s point 34 complains of the trial court’s refusal to allow cross-examination of Dr. Thomas Mayor, economist, on the cost of producing income. We find no cases which have discussed this assertion before, but the decision of John F. Buckner and Sons v. Allen, 289 S.W.2d 387 (Tex.Civ.App., Austin 1956, no writ) is helpful. In Buckner, the appellant complained of the failure to include the amount of money appellee would pay in taxes in the instructions to the jury. Court of Civil Appeals affirmed, holding the jury’s duty was to compensate appellee for his injuries and not to determine how she might spend or be obligated to spend such compensation. Appellant’s cross-examination of Dr. Mayor was directed at the required expense of producing income. We believe this is analogous to the payment of income tax excluded in Buckner. We, therefore, find no error in the exclusion of this evidence.

Further, if it was error to disallow cross-examination on this point, it was harmless error. Dr. Mayor testified that the present value necessary to compensate plaintiff for his injuries would be $990,157.00 if he obtained an income level of $25,000.00 or $1,737,057.00 if level was $45,000.00 in fifteen years. He also testified that the inclusion of the necessary expenses of producing income was not “qualitatively significant”. The jury rendered a verdict for the plaintiff in a sum of $800,000.00, well below either of the sums predicted by Dr. Mayor.

We overrule all of appellant’s foregoing points about the admission of and the exclusion of evidence. Specifically, these are points 16, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34.

Appellant’s point 35 complains of the closing argument of the attorney for third-party defendant, Dr. Gonzalez. That argument was as follows:

“MR. MADDIN: ... Dr. Bristol, let me tell you something. Dr. Rufino Gonzalez was born. He wasn’t created by a board of directors. He breathes. He lives. He suffers. And he will die.
MR. MEREDITH: Your Honor, that’s a direct attempt to try to prejudice the jury because my client is a corporate client versus an individual, exactly what the Court instructed not to do.
THE COURT: The objection is overruled.
MR. MADDIN: But Bristol-Myers can be created by this board of directors as long as they can sell this stuff and will go on forever. It has no soul. It has no conscience. It has no existence outside of the people that print this stuff and sell these drugs. But Dr. Rufino Gonzalez is a victim in this case, just exactly like that pitiful specimen sitting over there is a victim in this case, and he’s a victim of the good old American hard-sell. A hard-sell.”

This argument was probably error under the holdings of the following cases: Allis-Chalmers Mfg. Co. v. Board, 118 S.W.2d 996 (Tex.Civ.App., Amarillo 1938, no writ); Texas Indemnity Ins. Co. v. Carson, 21 S.W.2d 691 (Tex.Civ.App., El Paso 1929, writ dism’d); Home Life & Accident Co. v. Jordan, 231 S.W. 802 (Tex.Civ.App., Dallas 1921, no writ); Houston & T. C. R. Co. v. Long, 219 S.W. 212 (Tex.Civ.App., El Paso 1920, no writ). Even if the argument be error, it was not reversible error. The matters about which appellant complains do not constitute prima facie proof of harm. Especially is this so when we consider the reference to the appellant as “Dr. Bristol” by appellant’s attorney; the jury finding of negligence against Dr. Gonzalez; and the further jury finding of less damage to Ramon than the testimony of Dr. Mayor would support.

As we have noted, under Rule 434, a party complaining of error must show that such argument was reasonably calculated to, and probably did, cause the rendition of an improper judgment. In our case, there is no such showing. Accordingly, appellant’s point 35 is overruled.

Appellant’s point 37 is addressed to the size of the jury’s verdict for Ramon Gonzales. It was in the sum of $800,000.00 for the loss of future and past wage earning capacity; loss of future and past physical capacity, other than wage earning capacity; and future and past mental anguish. Appellant asserts that the trial court erred in overruling defendant’s motion for new trial because there was no evidence to support the jury’s verdict; the verdict was contrary to the great weight and preponderance of the evidence; and the jury’s verdict was the result of bias and prejudice against the appellant. Appellant also argues that the trial court should have ordered a remittitur.

At the time of the accident, Ramon Gonzales was 25 years old with a projected work age to 61.7 years. Prior to the accident, he appeared to have been an outgoing, an industrious, and a hard-working adult male. It is clear from the record that he sustained injuries resulting in total, permanent, bilateral deafness.

Jan Foster, a speech psychologist and a supervisor of Mr. Gonzales’ work, testified that since the accident, the appellant has become withdrawn and frustrated. Testimony of Dr. Austin, a clinical psychologist, confirmed this conclusion. Mrs. Foster further testified that plaintiff’s verbal ability has been lost in Spanish and is rapidly deteriorating in English. To maintain this ability, she believed that therapy would be necessary. Dr. Austin, a clinical psychologist, evaluated plaintiffs I.Q. at 126. This score placed Ramon Gonzales in the upper 10% of the test scale, indicating a very productive life. Dr. Austin, also, testified that plaintiff was suffering from frustration caused by conflict in his ability and his now limited capacity. To control this build up of frustration, counseling was recommended initially on a weekly basis and then as needed.

Dr. Thomas Mayor testified that a person with plaintiff’s potential in the field of social services making $600.00 a month presently could expect rapid advancement and that after 15 years, his income would be in the $25,000.00 per year category.

Appellant makes no contention that the damages suffered by Ramon Gonzales are inconsequential, but takes the position that by comparison with other eases the award is so grossly excessive, that it must have been produced by passion, prejudice or other improper motive of the jury. We do not agree. The damages in cases of this nature cannot be proven with the certainty and accuracy as it can in other cases. Continental Bus System, Inc. v. Toombs, 325 S.W.2d 153 (Tex.Civ.App., Fort Worth 1959, writ ref’d n. r. e.). Therefore, the question of damages is properly left with the jury. Rosenblum v. Bloom, 492 S.W.2d 321 (Tex.Civ.App., Waco 1973, writ ref’d n. r. e.); South Texas Natural Gas Gathering Company v. Guerra, 469 S.W.2d 899 (Tex.Civ.App., Corpus Christi 1971, writ ref’d n. r. e.); Saper v. Rodgers, 418 S.W.2d 874 (Tex.Civ.App., Houston [1st Dist.] 1967, writ ref’d n. r. e.). In the absence of a clear showing that passion, prejudice or other improper matters influenced the jury the amount assessed will not be set aside as excessive. Borak v. Bridge, 524 S.W.2d 733 (Tex.Civ.App., Corpus Christi 1975, writ ref’d n. r. e.); Bond v. Duren, 520 S.W.2d 460 (Tex.Civ.App., Waco 1975, writ ref’d n. r. e.); Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687 (Tex.Civ.App., Fort Worth 1964, writ ref’d n. r. e.); Cameo, Incorporated v. Evans, 377 S.W.2d 703 (Tex.Civ.App., San Antonio 1964, writ ref’d n. r. e.).

In the alternative, appellant has requested remittitur under Rule 440, T.R.C.P. In considering the excessiveness of compensation under remittitur, we are required to exercise sound judicial judgment and discretion in the ascertainment of what constitutes reasonable compensation for the injury suffered. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959); Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993 (1916).

There is no certain standard by which personal injury damages can be measured, and each case must stand on its own facts and circumstances, and a comparison with other cases on amounts of verdicts therein is of little or no help. Broesche v. Bullock, 427 S.W.2d 89 (Tex.Civ.App., Houston [14th Dist.] 1968, writ ref’d n. r. e.); J. A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex.Civ.App., Amarillo 1976, writ ref’d n. r. e.); Claunch v. Bennett, 395 S.W.2d 719 (Tex.Civ.App., Amarillo 1965, no writ); Graham v. Morris, 366 S.W.2d 792 (Tex.Civ.App., Amarillo 1963, no writ); Missouri Pacific Railroad Company v. Handley, 341 S.W.2d 203 (Tex.Civ.App., San Antonio 1960, no writ); Higginbotham v. O’Keeffe, 340 S.W.2d 350 (Tex.Civ.App., Amarillo 1960, writ ref’d n. r. e.); Green v. Rudsenske, 320 S.W.2d 228 (Tex.Civ.App., San Antonio 1959, no writ); Hayter Lumber Co. v. Winder, 295 S.W.2d 730 (Tex.Civ.App., Beaumont 1956, writ dism’d). This rule is based upon the sound policy consideration that the same loss will occasion different damages to different individuals depending upon mental aptitude and the effect of injuries on earning capacity. Claunch v. Bennett, supra.

In view of these principles and the facts of this case, we do not find the judgment, in our judicial discretion, to be excessive. Appellant’s request for remittitur is denied. Appellant’s point 37 is overruled.

In its final point (38), appellant argues that the judgment below should be reversed because of the cumulative effect of the foregoing errors complained of. For the reasons heretofore set out in our discussion of the foregoing points, we overrule appellant’s point 38.

We have held in the forepart of this opinion that contribution is proper under the evidence and jury findings of this case. Consequently, we reform the judgment of the trial court and hold Dr. Gonzalez liable to Bristol for one-half of the amount of the judgment. Also, costs are taxed one-half to each of those parties.

As reformed, the judgment of the trial court is AFFIRMED.

OPINION ON MOTION FOR REHEARING

Bristol, defendant-appellant, in its motion for rehearing complains about the manner we implemented our holding regarding Bristol’s right to contribution.

Instead of our holding Dr. Gonzalez, cross-defendant-appellee, liable to Bristol for one-half of the amount of the judgment, Bristol contends that we should have reduced the judgment amount by one-half under the doctrine of Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764 (Tex.Sup.1964). In Perkins, our Supreme Court held that where one joint tortfeasor settles with the injured party and receives a covenant not to sue, the injured party is precluded from recovering more than one-half of his damages from the non-settling tortfeasor.

The settlement between Ramon Gonzales and Dr. Gonzalez was sufficiently similar to the settlement in Perkins to lend merit to Bristol’s position.

Accordingly, we now reform the judgment of the trial court so as to award Ramon Gonzales judgment against Bristol in the sum of $400,000.00 together with interest as provided by law. Also, costs are taxed one-half to Ramon Gonzales and one half to Bristol.

Bristol’s motion for rehearing is in all other respects overruled.

      . . . We believe that it was unreasonable to suppose that a drug manufacturer must go beyond the physician and give actual warnings to the patient. Once the physician has been warned, the choice of which drugs to use, and the duty to explain the risks involved, is his.” Gravis v. Parke-Davis & Co., 502 S.W.2d 863 (Tex.Civ.App., Corpus Christi 1973, writ ref’d n.r.e.).


source: Caselaw Access Project

author: EVANS, Justice.

license: Public Domain

text:
    Gertrude Luetta McCARTNEY, Appellant, v. Gene Webster McCARTNEY, Appellee.
    No. 16778.
    Court of Civil Appeals of Texas, Houston (First Dist.).
    Dec. 30, 1976.
    Rehearing Denied March 3, 1977.

      L. A. Greene, Jr., Stewart L. Neblett, Elayne Shochet Tatar, Houston, for appellant.
    Hebinck, Hargrove, Clark & Lowes, James R. Clark, Houston, for appellee.
   EVANS, Justice.

This divorce action was commenced by the wife, who is appellant in this court, against her husband, based upon grounds of insupportability and seeking a division of the community property. The parties had been married some thirteen years. There were no children of the marriage. After a non-jury trial, a divorce was granted to the wife and the trial court proceeded to divide the community property. The principal question on this appeal is whether the trial court abused its discretion in making this division.

At the time of the divorce the wife was forty-five years old. She had experienced various medical problems during their marriage and it is undisputed that she had suffered a partial and permanent disability. This disability related to low back problems and prevented her from being employed on a full time basis. At the time the parties had married the wife had completed part of the ninth grade of school and she had also taken a nine-day course to learn how to operate a key punch machine. During their marriage she had functioned primarily as a housewife, but she had done some clerical work in her husband’s medical office.

The husband is a physician with an established practice in Harris County. He has incorporated his practice into a professional association, but is the only physician employed by the association. His medical practice has grossed approximately $120,-000.00 per year and shows some slight increase. His salary at the time of trial in January 1976 was $4600.00 per month, an annual rate of $55,200.00. Through his professional association he enjoys the tax free benefit of an automobile and retirement benefits. During the year prior to trial the professional association placed $28,271.00 tax free into his retirement fund. His health is generally very good.

The trial court, using the inventories submitted by the parties, found values and distributed the properties to the parties as follows:

The trial court also awarded the wife a recovery of $2,000.00 as attorney’s fees chargeable to the husband, so that adding such amount to the wife’s share her total award was $133,311.37 and the husband’s share $117,837.56. This resulted in a percentage award to the wife of 53.08% and to the husband of 46.92%.

In her first three points of error the wife contends the trial court abused its discretion in dividing the property in that it failed to properly consider factors evidencing the disparity in the parties’ earning capacity and as to the benefit the wife would have derived from a continuation of the marriage. In related points four through seven she contends the trial court erred in refusing to consider the husband’s fault in bringing about the divorce, in refusing to consider the tax liability of the parties in effecting the division, and in refusing to award her the full amount of her attorney’s fees.

The wife had undergone surgery on a number of occasions, three procedures having been performed for her lower back problem. She complained of almost constant pain through her lower back and through the hips. She testified it was very difficult for her to stand for any period of time. She believed that her physical disability would impair her performing any type of office work. She stated that on many occasions her husband had said that she was just one of those unfortunate people who are put together poorly; that she didn’t have a strong constitution and that she would never be able to work full time and support herself. She stated that after she came home from the hospital in February 1975 her husband walked into the bedroom and said, “I want a divorce” and then turned and walked out. She stated that the next night he came in and said that they had a good business arrangement; that it would be expensive to get a divorce and for her to go out and find a boy friend and he would find a girl friend so that they would continue to live together. She said this was unacceptable to her. The wife’s counsel then asked the question as to whether they had many fights or arguments and the trial court indicated that further testimony of such a nature would not be received. Although counsel explained that the sole purpose of this line of testimony was to establish fault for the purpose of considering an appropriate division of the property, the court indicated that it would not consider such testimony in effecting the division.

There was testimony from the husband’s tax attorney that his pension plan provided a tremendous income advantage and that up to 60% of the husband’s income had gone into the fund tax free to the husband. After November 1, 1976, the husband would be able to contribute up to 25% of his income. The plan also provided certain fringe benefits in the way of a 100% medical expense reimbursement program, an automobile and expense of its maintenance, and certain insurance coverage.

At the conclusion of the evidence the trial court made the division of the properties in the manner indicated. The trial court stated that it was not going to order the husband to pay the doctors’ bills which were outstanding until it was determined whether the wife would be reimbursed from an insurance settlement, and it instructed counsel to prepare an appropriate provision in the judgment to that effect. The court concluded:

“It’s an unequal provision. I told you I was going to have to make an unequal division. I want you to know why. We have a doctor here who is a .professional man. Mrs. McCartney is not trained. She is going to have a tough go of it. I recognize that; so, there is an unequal division because it’s going to be harder for her to get out there and make a living. I told you that. It’s based not upon her physical disability as much as the fact that she is not a trained person.”

It is reasonably clear that the trial court did consider the fact of the wife’s physical disability in making the property division, even though it may have determined that such factor was entitled to less weight than her lack of training. On the other hand, the record reflects that the trial court refused to consider factors pertaining to the husband’s fault in breaking up the marriage and with respect to the income tax liability of the parties.

Although the questions asked by the wife’s counsel indicated the general nature of the testimony which was proposed in support of her contention that the husband had been at fault in bringing about the divorce, the excluded testimony was not brought forward by an appropriate statement of facts or bill of exceptions. Under such circumstances this court cannot determine whether the exclusion of such testimony constituted reversible error. Rule 434, Texas Rules of Civil Procedure; Tooley v. Tooley, 545 S.W.2d 524 (Tex.Civ.App.—Houston [1st] 1976, no writ).

The trial court’s refusal to judicially determine the tax liability of the parties does, however, require that the cause be reversed. At a hearing on a pre-judgment matter the trial court was specifically requested by both counsel to make a determination of the parties’ tax liability, but it indicated it would not do so unless the matter was formally raised in a motion. Subsequently the wife’s counsel, in response to the husband’s motion for entry of judgment, directed the court’s attention to the fact that the judgment proposed did not dispose of all issues and that it did not determine the parties’ tax liability. A similar complaint was again made by the wife in her motion for new trial. Under the circumstances presented, the trial court erred in refusing to make provision in the judgment for the parties’ tax liability.

In Cole v. Cole, 532 S.W.2d 102, 105 (Tex.Civ.App.—Dallas 1975, no writ), Justice Guittard stated:

“In numerous cases the courts have held that the future needs of the wife and her lack of earning capacity are proper factors to be considered in dividing the property. Waggener v. Waggener, 460 S.W.2d 251 (Tex.Civ.App.—Dallas 1970, no writ); Duncan v. Duncan, 374 S.W.2d 800 (Tex.Civ.App.—Eastland 1964, no writ); and see Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923). Although we have found no cases holding that a trial judge abuses his discretion in failing to make an unequal division when these factors are present, we hold that if the disparity in earning capacity is as great as it is here, so as to leave the wife with substantial liabilities which she cannot discharge out of her income, while the husband has no comparable burden, the court should award her more than an equal share of the community estate. “In this particular case, as in many marriages, the wife abandoned her career and cast her lot with that of her husband. While he was increasing his earning capacity many times, she was maintaining the home and helping him in his business. The community-property system is based on the assumption that the husband’s earnings are not his alone, but are produced by the spouses’ joint efforts, and thus should be shared by them equally. The same principle applies, to some extent, to his earning capacity which, presumably, she helped him to develop. Upon termination of the marriage, his earning capacity will continue at a high level, while she must return to the job market to resume her career where she left off more than ten years earlier. We hold that it is manifestly unjust and unfair to allot to petitioner roughly half of the common property and leave her to support herself as best she can and also to pay half of whatever tax liability may remain because of his comparatively high earnings preceding the divorce.”

The testimony showed that the parties’ individual income tax returns for the year 1975 had not yet been prepared, but the wife’s financial situation would be further impaired by the imposition of a substantial tax liability for that year. Counsel has not directed our attention to any evidence indicating the probable amount of the income tax liability for the year 1975, nor with respect to any prepayment of such liability through withholding or by quarterly installments. The evidence did show the husband’s annual salary to be in the approximate amount of $55,000.00, which indicated the possibility of a substantial tax liability for the prior year.

The husband contends that the wife is not burdened with tax liability under the trial court’s judgment and he argues that she would assume no tax liability by filing a separate return for the year 1975. This argument fails to recognize that the wife remained individually liable for the income tax on one-half of the community income for the year 1975, and for prior years during the marriage. See Brooks v. Brooks, 515 S.W.2d 730, 733 (Tex.Civ.App.—Eastland 1974, writ ref. n. r. e.); 33 Am.Jur.2d § 1260 (1975).

The husband also contends that since the divorce decree did not make any disposition as to the parties’ tax liability, the wife could have that issue adjudicated upon a hearing subsequent to the decree. This contention is based upon the decisions authorizing a subsequent suit to dispose of community property rights which have not been adjudicated by the divorce judgment. See Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Thompson v. Thompson, 500 S.W.2d 203 (Tex.Civ.App.—Dallas 1973, no writ). The rationale of those decisions is not applicable to the case at bar. If tax liability is to be considered in the division of property, it m'ust be considered prior to the entry of final judgment. Once the decree becomes final, the parties’ respective liabilities are determined according to applicable law. See Allen v. Allen, 363 S.W.2d 312, 313 (Tex.Civ.App.—Houston 1962, no writ).

Although the wife in the case at bar received a 6.16% advantage in the value of the property awarded to her under the trial court’s decree, the husband’s future earning potential was shown to be much greater than the wife’s. The wife’s physical disability and her lack of training will likely require her to deplete the estate awarded to her under the decree, while the husband’s future earnings will likely increase the over-all value of the estate awarded to him. If the wife should suffer further calls upon the cash awarded to her in order to pay tax liabilities due on income received during the marriage, her ability to support herself from the properties awarded to her under the decree would obviously be impaired.

The trial court was not required to afford any greater weight to the issue of tax liability than to the other factors bearing upon the fair and just division of the community properties. However, the trial court should have taken into consideration the issue of tax liability, as with other pertinent factors affecting the justness of its decree. Wetzel v. Wetzel, 35 Wis.2d 103, 150 N.W.2d 482 (Wis.1967). In view of the considerable disparity in the earning power of the parties, the trial court could properly have required the husband to assume the wife’s liability for taxes or to require reimbursement to her for taxes paid. Cole v. Cole, supra; Gaulding v. Gaulding, 256 S.W.2d 684, 688 (Tex.Civ.App.—Dallas 1953, no writ). Under the circumstances presented the trial court’s refusal to make a determination of the parties’ income tax liability constituted reversible error. Rule 434, Texas Rules of Civil Procedure; Cole v. Cole, supra.

The trial court did not err in its award of attorney’s fees of $2,000.00 to the wife and in charging that amount against the husband. The wife contends that the undisputed testimony established that a reasonable attorney’s fee for counsel’s services to the wife was $17,170.00 and that this evidence was unchallenged by the husband. There was, however, no testimony showing that the wife had agreed to pay the claimed amount as attorney’s fees, and her counsel contends only that she agreed to pay a reasonable attorney’s fee for the services. The trial court was not bound to make an award to the wife of the full amount of the claimed attorney’s fees, and its ruling does not reflect an abuse of discretion. Cole v. Cole, supra; Cooper v. Cooper, 513 S.W.2d 229, 234 (Tex.Civ.App.—Houston [1st] 1974, no writ).

In points of error eight through eleven it is contended that the trial court erred with respect to its rulings on the receipt of evidence during the trial of the case, in requiring that the wife introduce the entire deposition of a witness as a condition to the admission of a part thereof, and in refusing the wife’s request that a court reporter be present to record testimony upon the husband’s motion for entry of judgment. A consideration of these points does not reflect that any of the asserted errors were reasonably calculated to cause and probably did cause the rendition of an improper judgment, or that the wife was probably prevented thereby from making a proper presentation upon appeal. Rule 434, Texas Rules of Civil Procedure.

In her twelfth point of error the wife contends that the trial court abused its discretion in failing to award support to the wife pending appeal. This point is overruled since no abuse of discretion has been shown. This ruling should not be taken as a determination that the present statute authorizes post-judgment alimony pending an appeal. See Ex parte Thompson, 510 S.W.2d 165 (Tex.Civ.App.—Dallas 1974, no writ); Texas Family Code, Section 3.59.

In her remaining points of error the wife contends that the trial court’s findings of fact and conclusions of law are not supported by sufficient evidence and are against the great weight and preponderance of the evidence, and that the trial court erred in failing to make additional findings of fact and conclusions of law after proper request to do so. These points do not present error except with respect to the matter of tax liability discussed above.

The trial court’s judgment is reversed to the extent that it affects a division and award of the properties, and the cause is remanded to the trial court with instructions that it make an appropriate disposition as to the parties’ respective income tax liability as a result of the income received prior to the dissolution of their marriage. Upon further hearing of that matter, if the court determines that such tax liability is substantial, it should enter an appropriate order placing the greater burden of such tax liability upon the husband. Cole v. Cole, supra. The decree of the trial court is in all other respects affirmed.

Costs of appeal are taxed against the appellee.

ON MOTION FOR REHEARING

Mrs. McCartney contends, in her motion for rehearing, that it is error for this court to order a partial reversal of the trial court’s judgment and to remand the cause solely that the trial court may decree an appropriate disposition of the parties’ income tax liability.

Rule 434, Texas Rules of Civil Procedure, as amended effective January 1, 1976, permits the court of civil appeals to order a limited new trial in certain circumstances. The pertinent part of Rule 434, as amended, provides:

“ . . . if it appear to the court that the error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties, the judgment shall only be reversed and a new trial ordered as to that part affected by such error, provided that a separate trial on unliquidated damages alone shall not be ordered if liability issues are contested.”

A limited new trial is now authorized where there is error in the trial court’s judgment as to a part of the matter in controversy and it is clear that such part may be separately determined without prejudice to the rights of the parties. Wirtz v. Orr, 533 S.W.2d 468, 472 (Tex.Civ.App.—Eastland 1976, no writ); Huffington v. Upchurch, 532 S.W.2d 576, 580 (Tex.1976). The trial courts have been granted similar authority by amendment of Rule 320, Texas Rules of Civil Procedure. See Pope and Sheehan, “ ‘Try, Try, Again . . . ’ A Proposal to Limit the Scope of New Trials in Texas”, St. Mary’s L.J. 1 (1975); Heath, Comments on The 1975 Amendments, 39 Texas B.J. 229 (1976); Annual Survey of Texas Law, 30 S.W.L.J. 293, 308 (1976).

In the case at bar the matter of the parties’ income tax liability is clearly separable from the trial court’s action in dividing the properties between the parties, and such matter can be determined by the trial court upon further proceedings without unfairness to the parties.

The judgment of the trial court is reversed with respect only to the matter of the division and award of properties, and that part of the matter in controversy is remanded to the trial court with instructions to hear only such additional evidence as may be necessary to effect an appropriate disposition of the parties’ income tax liability, based upon the income received prior to the dissolution of their marriage, and in accordance with the opinion rendered by this Court. In all other respects the judgment of the trial court is affirmed.

Appellant’s motion for rehearing is overruled.


author: McKAY, Justice.

text:
    STONE FORT NATIONAL BANK, Appellant, v. ELLIOTT ELECTRIC SUPPLY COMPANY, INC., Appellee.
    No. 958.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 17, 1977.
    Rehearing Denied March 24, 1977.

      William D. Guidry, Benchoff & Guidry, Nacogdoches, for appellant.
    Thad Floyd, Stripling & Sutton, Nacogdo-ches, for appellee.
   McKAY, Justice.

This case involves a question of priority between a materialman’s lien and a security interest under the Texas Business and Commerce Code. The case originally arose as an interpleader suit when the plaintiff, Brentco, Inc. (Brentco), filed its original petition complaining of Jim Porter, individually and doing business as Jim Porter Electric Company (Porter); Elliott Electric Supply Company, Inc. (Elliott), appellee herein; The Stone Fort National Bank (the Bank), appellant herein; and Nacogdoches Abstract and Title Company, Inc. (the Title Co.). In that petition Brentco admitted that it owed $4,078.00 on a subcontract to Porter and that such sum was held by the Title Co. Brentco alleged that it had no interest in the said amount, save that it be paid to the person legally entitled thereto. The Title Co. tendered that amount into the registry of the court to be paid to whomsoever it was due. In its original answer Elliott alleged that by reason of its mechanic’s and materialman’s lien, it was entitled to the full amount tendered into court and that its rights in and to said funds were superior to those of all other parties. The Bank filed a general denial. Later the Bank also filed a cross-action against Jim Porter and Elliott Electric Supply Company, Inc., whereby the Bank sought to recover on a promissory note executed by Porter to the Bank alleging a superior claim to the funds which had been interpleaded into the registry of the court.

On June 13, 1975, an interlocutory judgment was entered in the cause whereby the sum of $4,078.00 was paid into the registry of the court and Brentco was dismissed from the case. In that judgment the trial court found that Porter had defaulted and was not entitled to any judgment, and thus the cause was continued on the docket of the trial court as between Elliott Electric and the Bank. The case was tried before the court without a jury. After hearing and examining the evidence and arguments of counsel, the court rendered judgment that Elliott be awarded the sum of $4,078.00, which sum had been interpleaded into the registry of the court. It further ordered that the Bank recover judgment of $4,059.75 plus $1,500.00 attorney’s fees against Porter and that the Bank’s security interest be foreclosed as against all of the right, title and interest of Porter, subject to the superior rights of Elliott Electric in and to the $4,078.00 interpleaded into the trial court. This latter portion of the judgment is not appealed from. Request for findings of fact and conclusions of law was not timely requested and none were filed by the court. From this judgment the Bank has made a limited appeal concerning the $4,078.00 awarded to Elliott.

The record reveals that Brentco, the original contractor, contracted to build and built an apartment complex called Brent-wood Manor Apartments located in the City of Nacogdoches. The apartments were built during 1974 for Bill Wilder of Henderson, Texas. During the course of the construction Brentco subcontracted all the electrical work on the job to Porter. One of Porter’s suppliers was Elliott who supplied electrical materials to Porter from February, 1974, to late 1974 or January, 1975.

In the early part of August, 1974, during the construction, Porter became unable to pay off his accounts. On August 15, 1974, Porter, upon Elliott’s suggestion, secured a loan from the Bank in the amount of $30,-000.00. He executed a promissory note in favor of the Bank for the loan amount and also a security agreement, covering certain items of personal property as security, including all contract rights and accounts receivable. After receiving the money from the loan Porter used the funds to pay on his account balance to Elliott who gave him credit for the $30,000.00; however, this did not completely satisfy the debt. Elliott stopped delivering materials to Porter around the end of 1974 or early 1975.

On November 20, 1974, Elliott caused to be filed with the office of the County Clerk of Nacogdoches County, Texas, a mechanic’s and materialman’s lien affidavit covering the Brentwood Apartment project. In the affidavit Elliott claimed it had furnished electrical materials to Jim Porter doing business as Jim Porter Electric Company for use in the Brentwood job and that it had not been paid for the said materials. In conjunction with the filing of this affidavit Elliott caused two exact copies of the affidavit to be mailed to Wilder, the owner. Prior to this time, on November 7, 1974, Elliott had sent statutory notices of its claim to Brentco and Wilder. Upon receipt of the notice Brentco withheld $4,078.00 or approximately 10% of the contract price from the final payment.

Upon trial of the cause Elliott introduced into evidence the monthly statements he had sent to Porter from June, 1974, to July, 1975. Each statement was dated the 25th of the month. The statements were prepared by a computer billing service (Nacog-doches Computer Service). Elliott would send a batch of invoices to the computer service who prepared the statements from the invoices. No testimony from a representative of the computer service as to the method of preparation of the statements was introduced; however, Mr. Elliott, the owner of Elliott Electric Supply Co., Inc., testified that after the statements were produced his personnel double-checked them against their balances. The statements indicated the invoice numbers of basically all the unpaid invoices. They did not reflect the invoice date or the date of delivery. According to Mr. Elliott the statements reflected invoices for materials delivered to Porter on other jobs that Porter was working on in addition to the Brentwood job. Although Mr. Elliott said the total for a particular job could be figured from the invoices, no attempt was made to separate the amounts in the statements. He also testified that some invoices in a given month were not received in time to send to the computer service. He testified that when credits or payments were received that they were applied against the oldest unpaid invoice.

Most of the dispute was over the balance due as of August 25,1974. The balance per the statement was $48,392.22. The Bank introduced evidence of several credits made subsequent to the August 25th billing which if applied against the oldest invoices would lower the balance. These included: returned inventory, $10,736.76; equipment given to Elliott (airplane and two trucks), $11,900.00; and payments, $14,990.00, with a total of $37,626.76. This total deducted from the statement balance gave a balance of $10,765.46. The Bank then introduced into evidence a promissory note in the amount of $20,503.90 dated November 12, 1974, made by Carthage Plumbing and Heating, a partnership of Tommy Cox and Harold Wiggins. The note recited that it was “given in consideration of a Release of Claim by Elliott Electric Supply Co., Inc., said claim arising from the furnishing of electrical supplies and materials to Jim Porter . . . .” If this note was a credit against the account then Porter would have a credit balance, assuming the above credits were valid. Mr. Elliott testified that he had sued on the note but it had not been reduced to judgment, nor had he given Porter credit on his books.

Elliott also introduced into evidence ninety-five of its invoices to Porter dated from March 15,1974, to September 3,1974, claiming them to be for materials delivered to the Brentco job. Only the last invoice dated September 3, in the amount of $14.65, was dated in the month of September. The last date on an invoice prior to that was August 29, 1974. Mr. Elliott had testified that the invoice is made up “at the exact time of the sale ordinarily, yet there could be an occasion where it would be written one day or delivered the next” apparently meaning that the invoice date was the day of delivery or the day before the delivery.

The Bank brings ten points of error. Points one, four and seven are no evidence points. Points two, three, five, six, eight and nine are insufficient evidence points. Point ten claims that as a matter of law the contract rights held by the Bank were superior to the claims of Elliott. Before passing upon the points presented we must consider the rules we are bound to follow. Where no findings of fact or conclusions of law are filed we must presume on appeal that every fact issue and such implied findings as were necessary to support the judgment were found by the trial court. Morris v. Texas Elks Crippled Children’s Hospital, Inc., 525 S.W.2d 874, 881 (Tex.Civ.App.—El Paso 1975, writ ref’d n. r. e.). In passing upon whether there is no evidence to support the judgment we must consider only the evidence favorable to the findings of the trial court, but in passing on the insufficiency of the evidence we consider all the evidence in the record. Richardson v. Holmes, 525 S.W.2d 293, 295 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.). In the absence of findings and conclusions the judgment of the trial court must be affirmed if there is any legal theory which supports the judgment which has support in the evidence. Washington v. Law, 519 S.W.2d 953, 954 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n. r. e.).

In following the above rules in order to find that the trial court committed error it would be necessary that we determine that there is no evidence of probative value to support the judgment on the points raised. Therefore, we shall consider only points one, four, seven and ten.

Point one complains that there was no evidence that Porter was indebted to Elliott for materials furnished on the Brentco job. The thrust of appellant’s argument on the first point is that the acceptance of the note of Carthage Plumbing and Heating by Elliott satisfied and discharged Porter’s debt to Elliott. Article 3.802 of the Texas Business and Commerce Code Annotated provides:

“(a) Unless otherwise agreed where an instrument is taken for an underlying obligation
“(2) . . . the obligation is suspended pro tanto until the instrument is due or if it is payable on demand until its presentment. If the instrument is dishonored action may be maintained on either the instrument or the obligation; discharge of the underlying obligor on the instrument also discharges him on the obligation.

Under “Comment” to this section it is stated “. . . but if the instrument is not paid on due presentment the right to sue on the obligation is ‘revived’.”

Delivery of notes of a third person to the creditor does not constitute an absolute payment unless the parties so intend. Morphy v. Garrett, 48 Tex. 247, 250 (1877); Houston v. Evans, 17 S.W. 925 (Tex.1891); Hill v. Citizens Nat’l Bank of Dallas, 495 S.W.2d 615, 619 (Tex.Civ.App.—Tyler 1973, reversed on other grounds, Tex., 505 S.W.2d 246). Moreover, appellant did not affirmatively plead payment as required by Rules 94 and 95 of the Texas Rules of Civil Procedure, which have been held to apply to a party who is asserting the invalidity of a materialman’s lien claim on the grounds that the materials which are the basis of claim have been paid for. First National Bank in Dallas v. Whirlpool Corp., 517 S.W.2d 262, 269 (Tex.1974).

In the present case we may assume that since the note has been sued on that the presentment and demand has been made by Elliott to Carthage Plumbing and Heating and that it has been dishonored; therefore, Porter’s obligation would be “revived”. We hold that since the note had not been collected, it did not extinguish Porter’s debt to Elliott. The Bank’s point one is overruled insofar as it complains that the debt of Porter was extinguished by the note of Carthage Plumbing and Heating.

The Bank’s point four complains that the trial court erred in granting judgment to Elliott because there was no eyi-dence that Elliott had a valid mechanic’s and materialman’s lien.

Article 5453-2b(l), V.A.C.S., provides:

“(1) Where the claim consists of a lien claim arising from a debt incurred by a subcontractor, the claimant shall give written notice of the unpaid balance of such claim to the original contractor not later than thirty-six (36) days after the tenth (10th) day of the month next following each month in which claimant’s labor was done or performed in whole or in part or his material delivered in whole or in part; and claimant shall give a like notice to owner not later than ninety (90) days after the tenth (10th) day of the month next following each month in which the claimant’s labor was done or performed in whole or in part or his material delivered in whole or in part.”

The only notice in the present case which was sent by Elliott to Brentco was sent on November 7, 1974. The notice was sent within 36 days of the 10th of the month (October) following September; therefore, the notice only covered materials delivered after September 1, 1974, since the notice is required to be sent within 36 days of the 10th of the month following each month in which the materials are supplied. In no ease would the notice cover materials delivered prior to September 1, 1974.

The only proof in the record that any materials were delivered in the month of September, 1974, pursuant to the notice given on November 7, 1974, was the invoice dated September 3, 1974, in the amount of $14.65. No testimony as to the dates of delivery of goods reflected by the monthly statements was offered; in fact, Elliott’s main point of contention was in regard to the August 25, 1974, statement which admittedly was for invoices for materials delivered prior to that time and likewise prior to September 1, 1974. The latest date on any of the invoices other than the last one was August 29, 1974. According to Mr. Elliott’s testimony as to when deliveries were made, the supplies on this invoice would have been delivered either that day or August 30, 1974. Linwood Flurry, a former employee of Porter, testified as to receiving several of the deliveries; however, no specific dates were given and most of his testimony was in reference to the invoices introduced into evidence. We hold that Elliott failed to introduce evidence, other than for $14.65, that Elliott delivered materials to Porter during the month of September, 1974, the period required by the notice.

"Elliott contends that it “substantially complied” with the mechanic’s and materi-alman’s lien in that it (1) filed the affidavit claiming the lien with the County Clerk not later than 90 days after the indebtedness accrued, (2) sent two copies of the said affidavit to the owner by certified or registered mail, and (3) gave written notice to the owner within 90 days after the 10th of the month of each month in which the materials were delivered, all required by Article 5453, V.A.C.S.

We disagree with Elliott’s contention of “substantial compliance”. The 36 day notice provision in (2)(b)(l) of Article 5453, requiring notice to be given by the claimants of the subcontractor to the original contractor is for the benefit of the original contractor. It is the only notice that the original contractor personally receives. In the present case the dispute is over money in the hands of the subcontractor — now in the registry of the court. We hold that Elliott was not in compliance with the notice requirements of the mechanic’s and ma-terialman’s statute, with the exception of the $14.65 proven. However, in view of our disposition of this appeal, we hold it was not reversible error.

The Bank’s point seven complains that the trial court erred in granting judgment to Elliott because there is no evidence that the funds held in the registry of such court were trust funds held for the benefit of Elliott. Article 5472e, V.A.C.S., provides in Section (1):

“All moneys or funds paid to a contractor or subcontractor or any officer, director or agent thereof, under a construction contract for the improvement of specific real property in this state . are hereby declared to be Trust Funds for the benefit of materialmen who may . . . furnish material for the construction or repair of any house, building or improvement whatever upon such real property; . . ”

Elliott contends that this statute was enacted to give protection to material-men in addition to that provided by Article 5452, et seq., V.A.C.S., without any requirement for filing or notice or other action on the part of the materialman as a prerequisite to the rights provided under said statute. Mechanic’s and materialmen’s lien statutes in Texas are liberally construed for the purpose of protecting laborers and ma-terialmen. First National Bank in Dallas v. Whirlpool Corp., supra.

In Panhandle Bank & Trust Co. v. Graybar Electric Co., Inc., 492 S.W.2d 76, 81, 82 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.), the court followed two Federal cases and held that Art. 5472e is an additional security over and above the security provided by other statutes in favor of laborers and materialmen. The court there concluded:

“Article 5472e, the statute apparently enacted to give protection to materialmen in addition to that provided by Articles 5452 et seq. and 5160, has constituted all funds paid to a subcontractor under a construction contract such as this, as trust funds for the benefit of material-men and laborers without any requirement for ‘filing’ or ‘notice’ or other action on the part of the materialmen as a prerequisite to the rights provided under the act. . . . ”

The Panhandle Bank case has been cited and followed by Triton Oil & Gas Corp. v. Moran Drilling Co., 509 S.W.2d 678, 687 (Tex.Civ.App.—Ft. Worth 1974, writ ref’d n. r. e.), and by American Amicable Life Ins. Co. v. Jay’s Air Conditioning and Heating, Inc., 535 S.W.2d 23, 26 (Tex.Civ.App.—Waco 1976, writ ref’d n. r. e.), in which the latter court, writing on Art. 5472e, V.A. C.S., said:

“The purpose of this statute is to protect materialmen and laborers, contractors and subcontractors; it does not create a trust for the benefit of interim or permanent lenders. . .

Under the record presented here it seems unquestioned that the funds paid into the registry of the court were trust funds, and under the statute and the authorities Elliott, the materialman, was entitled to the trust funds in preference to the Bank. While the requirements of notice provided for in Art. 5453(2)(b)(l) seem to become unnecessary, the reasoning of the cases seems to be that the Legislature has simply provided an additional protection for laborers and materialmen in enacting Art. 5472e. General Electric Supply Co. v. Epco Constructors, Inc., 332 F.Supp. 112 (S.D.Tex.1971); Panhandle Bank and Trust Co. v. Graybar Electric Co., Inc., supra.

The Bank’s points seven and ten are overruled.

The judgment of the trial court is affirmed.