author: GREENHILL, Chief Justice. DANIEL, Justice

text:
    Elzie Pauline ROURKE, Individually, etc., Petitioner, v. Adolph O. GARZA et al., Respondent.
    No. B-4791.
    Supreme Court of Texas.
    Nov. 5, 1975.
    Rehearing Denied Jan. 7, 1976.

      Mills, Shirley, McMicken & Eckel, Preston Shirley, Galveston, for petitioner.
    R. A. Apffel, Galveston, Kronzer, Abraham & Watkins, John B. Murphrey, Nick C. Nichols and W. J. Kronzer, Houston, McLeod, Alexander, Powel & Apffel, Y. W. McLeod and James L. Anthony, Galveston, for respondent.
   GREENHILL, Chief Justice.

This is a products liability case. Respondent, Adolph 0. Garza, a pipefitter-welder employed by Har-Con Engineering Company, Inc., brought this suit against J. E. Rourke, individually and d/b/a J. E. Rourke Rental & Supplies, for personal injuries sustained in a fall from scaffolding which had been supplied by Rourke Rental to Har-Con at Har-Con’s job site in Galveston, Texas. Rourke Rental impleaded Har-Con, alleging written indemnity. The trial court entered judgment on the jury’s verdict in favor of Garza for $303,126.42. The plaintiff Garza, as an employee of Har-Con, had been paid workmen’s compensation for total and permanent disability in the amount of $35,326.42. Traveler’s Insurance Company, the compensation carrier for Har-Con, was awarded that amount of the above judgment by subrogation. The trial court denied Rourke Rental’s plea of indemnity against Har-Con. The court of civil appeals affirmed, one justice dissenting. 511 S.W.2d 331. We affirm.

STRICT LIABILITY

Plaintiff Garza charged that Rourke Rental supplied defective scaffolding equipment to Har-Con’s job site in that the scaffolding boards supplied did not include cleat-type devices attached to the boards to prevent their slipping on the pipe frames, These cleats are 2 x 4-inch boards nailed to the underside on each end of the boards to prevent lateral movement of the boards.

In May of 1965, Har-Con, a Houston-based construction firm, was engaged in several construction jobs in Galveston, Texas, including the work at Sam Houston School where the accident occurred. Har-Con specialized in mechanical work such as plumbing, air conditioning, heating and ventilating. Rourke Rental had been in the business of renting scaffolding equipment for about fifteen years prior to the accident, and it had previously rented such equipment to Har-Con.

On this occasion, Rourke Rental’s delivery man, Ferdinand Meyer, delivered and unloaded the scaffold pipe frames, boards, and connecting pins at the job site at the Sam Houston School. After unloading the equipment, Meyer called Har-Con’s superintendent, Fred Newton, to check the delivery. Newton counted the materials and signed a receipt which recited that the equipment had been delivered in good order, and which contained, on its reverse side, an indemnity provision. The scaffolding included four 2 x 10-inch boards eight feet in length which would lie across the steel pipe frames to form the platform. Har-Con’s foreman, Hawkins, and several other Har-Con employees actually erected the scaffolding.

The plaintiff, Garza, saw the scaffolding equipment when it was delivered and while it was being erected; but he took no part in the unloading, checking or assembly of the scaffold. After the scaffold was erected, Garza climbed to the top platform, and worked there about one-and-one-half hours before the accident occurred. He testified that immediately prior to the accident, he had finished making a weld and had stepped aside so that his helper could scrape the weld, and that he then fell through the center of the scaffolding when two of the boards “slipped on the inside.”

The following issues regarding Rourke Rental’s liability were submitted by the trial court and answered by the jury:

SPECIAL ISSUE NO. 1

“Do you find . . . that failure to have cleat type devices on the scaffold boards delivered by the Defendant, Rourke Rental . . . rendered the scaffold boards defective as herein defined?
“You are instructed that a product is ‘defective’ as that term is used in the above Special Issue, if the product exposes its user to an unreasonable risk of harm when used for the purpose for which it was intended.
“By the term ‘unreasonable risk of harm,’ as used in the above and foregoing instruction is meant that the article leased must be dangerous to an extent beyond that which would be contemplated by the ordinary user who leases it, with the ordinary knowledge common to the community as to its characteristics.
“ANSWER: ‘We do.’ ”

SPECIAL ISSUE NO. 2.

“Do you find . . . that Defendant ROURKE RENTAL could reasonably anticipate that the scaffold boards delivered on May 27, 1965, might be placed upon the scaffold frame without the addition of cleat type devices?
“ANSWER: ‘We do.’ ”

SPECIAL ISSUE NO. 3.

“Do you find . . . that the failure to have cleat type devices on the scaffold boards was a producing cause of the occurrence in question?
“In connection with the foregoing Special Issue, you are instructed that the term ‘producing cause’ means an efficient, exciting, or contributing cause, which, in a natural sequence, produced injuries or damages complained of, if any. There can be more than one producing cause.
“ANSWER: ‘We do.’ ”

SPECIAL ISSUE NO. 4.

“Do you find . . . that Defendant ROURKE RENTAL’S failure to provide cleat type devices on the scaffolding boards in question constituted negligence as that term is herein defined?
“ANSWER: ‘We do not.’ ”

Garza obtained judgment on the theory of strict liability in tort. The Restatement (second) of Torts § 402A (1965) states that a seller of a product in a defective condition unreasonably dangerous to the user is subject to liability for physical harm caused to the user if the seller is engaged in the business of selling such a product and it is expected to and does reach the user without substantial change in the condition in which it is sold. This rule applies even though the seller has exercised care in the preparation and sale of his product and even though the user has not purchased the product or entered into any contractual arrangement with the seller. This statement of strict liability has been adopted as the rule in Texas. Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex.1969); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). The rule applies to unreasonably dangerous products whether the defect occurred in their production or their design. Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974); Ford Motor Co. v. Russell & Smith Ford Co., 474 S.W.2d 549 (Tex.Civ.App.—Houston [14th] 1972, no writ); Garcia v. Sky Climber, Inc., 470 S.W.2d 261 (Tex.Civ.App.—Houston [1st] 1971, writ ref. n. r. e.).

Rourke Rental contends that the scaffold boards were not defective at the time of delivery, since they were in sound condition; i. e., the lumber was not defective and did not break. This argument, however, overlooks the fact that we are here concerned with the lease of a disassembled scaffold, not merely the lease of lumber which could be used as the lessee pleased. It is undisputed that the parties intended the boards to be used for scaffolding. It is also clear from the testimony of Mrs. Rourke and Mr. Meyer that the boards were used in exactly the manner intended by Rourke Rental.

The determination of whether a product is defective must be made in light of the normal uses of the product; and where it is misused, strict liability does not apply. Helicoid Gage Division of American Chain and Cable Co. v. Howell, 511 S.W.2d 573 (Tex.Civ.App.—Houston [14th] 1974, writ ref. n. r. e.); McDevitt v. Standard Oil Company of Texas, 391 F.2d 364 (5th Cir.1968); Restatement (second) of Torts § 402A, comment h (1965). Since it is undisputed that the scaffold boards here were properly used (in fact, they were used exactly as Rourke Rental intended), our question is whether or not the boards were unreasonably dangerous for use as scaffolding.

While evidence was produced by both sides as to whether the boards were or were not unreasonably dangerous for this use, there was testimony to support the jury’s finding against a “no evidence” attack. Two witnesses, Conley and Newton, testified that scaffold boards were customarily furnished with cleats. Conley testified that without cleats, a scaffold would present a “danger situation,” would be “very unsafe” and “would not be reasonably fit for scaffolding boards.” Newton testified that without cleats, “you have got a dangerous situation.” All the witnesses recognized that cleats would have prevented the boards from slipping off the frames. Meyer testified that the scaffold boards were eight feet long and were used on a seven-foot scaffold, leaving only a six-inch margin of safety on each side of the pipe frames.

There is evidence to the contrary. Meyer, the delivery man, testified that Rourke Rental never used cleats on the boards, and that the customer could add them himself if he wanted cleats. He testified that if Rourke Rental put cleats on there would be an extra charge, but that this was never done. He said that when boards were returned with cleats on them, he just knocked them off with a hammer. He further testified that Har-Con had never asked for cleats, and that no cleats had been put on the boards delivered to Har-Con.

When a party asserts that there is no evidence to support jury findings, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974); Langlotz v. Citizens Fidelity Ins. Co., 505 S.W.2d 249 (Tex.1974). The jury having found that the scaffold boards were unreasonably dangerous, and there being evidence to support the finding, we cannot, as a matter of law, hold otherwise.

This result does not place an unreasonable burden on suppliers of scaffolding. Cleats do not impair the usefulness of the boards, nor are they expensive to attach. By using cleats or comparable devices, a substantial risk of harm may be avoided. Thus, the jury was justified in concluding that the risk of harm outweighed the utility of the cleatless scaffold boards and that they were therefore unreasonably dangerous. See Helicoid Gage Division of American Chain and Cable Co. v. Howell, supra; Metal Window Products Co. v. Magnusen, 485 S.W.2d 355 (Tex.Civ.App.—Houston [14th] 1972, writ ref. n. r. e.); Wade, Strict Tort Liability of Manufacturers, 19 S.W.L.J. 5, 17 (1965); Keeton, Products Liability and the Meaning of Defect, 5 St. Mary’s L.J. 30, 38-39 (1973).

We are also unable to agree that the danger did not exist at the time of delivery, since it was the failure to supply cleats that made the boards defective. These scaffolding boards were expected to and did reach Garza without substantial change in their condition, and therefore clearly fall within the Restatement rule. Restatement (second) of Torts § 402A (1965).

Rourke Rental next contends that the theory of strict liability is not applicable to the leasing of equipment to an industrial user, as distinguished from a sale of the equipment. We can see no sound basis for this distinction. Where one is engaged in the business of introducing products into the channels of commerce, he will be subject to strict liability for physical harm caused by such products if they are unreasonably dangerous to the user or consumer whether he sells or leases his products. See Garcia v. Sky Climber, Inc., supra; Bachner v. Pearson, 479 P.2d 319 (Alaska 1970); Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769 (1965); Stang v. Hertz Corp., 83 N.M. 730, 497 P.2d 732 (1972). This point is overruled.

In the third consolidated point, Rourke Rental contends that because the jury failed to find it negligent in failing to provide cleats for the scaffolding boards, it cannot be strictly liable for an alleged design defect. It argues that the jury has returned contradictory findings because one way of stating that a product is defectively designed is that no prudent manufacturer, aware of the risks involved in its use, would place such products into the channels of commerce. This contention misconceives the basis of strict liability in tort. A finding of negligence is not required. In fact, the supplier may be liable even though he has exercised all possible care in the preparation and sale of his product. McKisson v. Sales Affiliates, Inc., supra; Restatement (second) of Torts § 402A, comment a (1965). While the definitions of “negligence” and “defective design” may have certain similar or common elements, they involve two separate theories of recovery. McKisson v. Sales Affiliates, Inc., supra; Restatement (second) of Torts § 402A, comment a (1965).

Rourke Rental submits that because the absence of cleats was open and obvious and did not constitute a latent defect, strict liability is inapplicable. It further complains of the refusal of the trial court to submit special issues relating to the open and obvious condition of the scaffold boards. Section 402A of the Restatement (Second) of Torts does not distinguish between patent and latent defects in products, nor is the obviousness of the peril mentioned as the basis of a defense to strict liability. It is an appropriate defense that the user voluntarily exposed himself to the risk posed by the defective product with knowledge and appreciation of the danger. Henderson v. Ford Motor Co., supra; Restatement (second) of Torts § 402A, comment n (1965). If Garza knew of the absence of cleats on these boards, or if he was charged in law with such knowledge, and he appreciated the danger, strict liability would be defeated. However, no evidence shows that Garza inspected the equipment when it was delivered, or that he helped assemble it. The jury refused to find that he had knowledge of the absence of cleats prior to the accident, and we cannot conclude as a matter of law that he was chargeable with such knowledge. Contributory negligence or failure to act reasonably is not a defense to strict liability. Restatement (second) of Torts § 402A, comment n (1965); Henderson v. Ford Motor Co., supra. Thus whether Garza should have inspected the assembled scaffold before using it is not controlling. These points are overruled.

In Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390 (Tex.1967), this Court held that while “[a landowner] owes a duty to employees of an independent contractor to take reasonable precautions to protect them from hidden dangers on the premises or to warn them thereof, an adequate warning to or full knowledge by the independent contractor of the dangers should and will be held to discharge the landowner’s alternative duty to warn the employees.” It is Rourke Rental’s position that the knowledge of Har-Con’s superintendent and foreman of the absence of cleats is enough to discharge Rourke Rental’s duty to warn Garza about the dangerous condition of the scaffolding boards.

This argument fails to recognize the differences in the duties owed by a landowner and a supplier of products. The duty of the former, being based on negligence, requires only that he exercise reasonable care to make his premises safe for his invitees. Adam Dante Corp. v. Sharpe, 483 S.W.2d 452 (Tex.1972); J. Weingarten, Inc. v. Razey, 426 S.W.2d 538 (Tex.1968). This duty may be discharged by adequate warnings. J. Weingarten, Inc. v. Razey, supra; Halepeska v. Callihan Interests, 371 S.W.2d 368 (Tex.1963). A supplier of products, on the other hand, has a more stringent duty. As stated above, negligence is not required, and a supplier may be liable even though he has exercised all possible care.

The rationale of the rule in Delhi-Taylor is found in the landowner’s duty to exercise reasonable care. This Court there held that to require the landowner to warn each employee of an independent contractor of the dangers on his land would result in imposing a duty exceeding that standard of care. Gulf Oil Corp. v. Bivins, 276 F.2d 753 (5th Cir. 1960); Tyler v. McDaniel, 386 S.W.2d 552 (Tex.Civ.App.—Dallas 1965, writ ref. n. r. e.); Storm v. New York Tel. Co., 270 N.Y. 103, 200 N.E. 659 (1936). Since reasonable care is not the standard in products liability cases, Rourke Rental’s analogy to Delhi-Taylor is inappropriate, and we decline to extend its reasoning to this area.

Neither can we agree that Rourke Rental is not responsible for this accident because the scaffold was erected by Har-Con’s employees. Mrs. Rourke, representing Rourke Rental, testified that the equipment was leased to be used just as it was used, and that she had no complaint about Har-Con’s failure to add cleats to the boards. Since the boards were expected to and did reach the user, Garza, without substantial change in condition, Rourke Rental may be held strictly liable. Cf. Bexiga v. Havir Mfg. Corp., 60 N.J. 402, 290 A.2d 281 (1972); Restatement (second) of Torts § 402A, corn-ments p and q (1965).

The next points relate to the refusal of the trial court to submit special issues inquiring whether the boards were delivered in a condition not contemplated by Har-Con or Garza. The issue relating to Har-Con’s contemplation was properly refused because it is not a controlling issue. Rule 279, Texas Rules of Civil Procedure. What Har-Con contemplated is not relevant to Rourke Rental’s liability to Garza. Whether Garza contemplated that the boards would be delivered with or without cleats relates to the defense that he assumed the risk. That issue was fairly submitted by special issue No. 6 which asked whether prior to the accident Garza actually knew of the absence of the cleats. As has been noted, the jury failed to find that Garza had such knowledge. Consolidated point 9 is overruled.

Rourke Rental also asserts that the court erred in submitting producing cause instead of proximate cause, and in defining producing cause as “an efficient, exciting, or contributing cause, which in a natural sequence, produced injuries or damages complained of, if any. There can be more than one producing cause.” There was no error in the submission or definition. Hoover and Son v. O. M. Franklin Serum Co., 444 S.W.2d 596 (Tex.1969); Hartzell Propeller Co. v. Alexander, 485 S.W.2d 943 (Tex.Civ.App.—Waco 1972, writ ref. n. r. e.); Restatement (second) of Torts § 402A (1965).

Having examined Rourke Rental’s first ten consolidated points of error, we conclude that they must be overruled and that the judgment in Garza’s favor must be affirmed.

INDEMNITY — APPARENT AUTHORITY

When Rourke Rental delivered the unas-sembled scaffold, it was received by Newton, Har-Con’s superintendent for the Galveston area. Newton signed the delivery ticket which stated that the equipment was received “in good order subject to terms and conditions on the reverse side.” The second paragraph of these terms contains a “hold harmless” clause which, according to Rourke Rental, requires Har-Con to indemnify it for any liability it has to Garza.

The trial court submitted two special issues to determine the authority of Newton to bind Har-Con to an indemnity contract:

SPECIAL ISSUE NO. 14.

“Do you find from a preponderance of the evidence that FRED NEWTON had the authority from HAR-CON to execute on behalf of HAR-CON Order A-8829, together with the terms and conditions on the front and back of said order?
“ANSWER: ‘We do not.’

SPECIAL ISSUE NO. 15.

“Do you find from a preponderance of the evidence that FRED NEWTON had the apparent authority from HAR-CON to execute on behalf of HAR-CON, Order A-8829, together with the terms and conditions on the front and back of said order?
“In connection with your answer to this issue, you are instructed that where a principal places an agent in such a situation that a person of ordinary prudence who is conversant with the business usages and the nature of the particular business would reasonably be led to believe that the agent has authority to perform acts customarily done in business of that kind, one who deals with the agent would be justified in believing that he has such authority.
“ANSWER: ‘We do.’ ”

Har-Con objected to Special Issue No. 15 for several reasons, including that there was no evidence to justify the submission of the issue to the jury and that the charge did not require that Rourke Rental must reasonably have relied on such apparent authority, if any. The objection was overruled. After the jury returned its answers, Har-Con filed a motion to disregard the jury findings to Special Issue No. 15 and for judgment non obstante veredicto. The court granted both motions. Rourke Rental contends that the court erred in granting these motions.

In Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422 (1953), this Court made the following statement regarding apparent authority:

“The doctrine of apparent authority is based on estoppel, and one seeking to charge a principal through the apparent authority of an agent to bind the principal must prove such conduct on the part of the principal as would lead a reasonably prudent person, using diligence and discretion, to suppose that the agent has the authority he purports to exercise.” [Emphasis added]

Therefore, in order to establish that Newton had apparent authority to bind Har-Con to the indemnity agreement, Rourke Rental must show conduct on the part of Har-Con leading reasonably to the belief that Newton had this authority. Custom Leasing, Inc. v. Texas Bank and Trust Company of Dallas, 516 S.W.2d 138 (Tex.1974); Chastain v. Cooper & Reed, supra, Great American Casualty Co. v. Eichelberger, 37 S.W.2d 1050 (Tex.Civ.App.—Waco 1931, writ ref’d).

While there are numerous actions on the part of a principal which, in certain situations, may give rise to apparent authority, see Restatement (second) of Agency § 27, comment a (1957), there are only two possibilities present in this case: the course of prior dealings between Rourke Rental and Har-Con, and the fact that Har-Con had placed Newton in the position of superintendent of the Galveston area jobs.

Rourke Rental argues that it was reasonable to believe that Newton had the authority to execute the indemnity agreement in view of the fact that Har-Con had paid seven prior bills based on identical delivery ticket forms without any protest that the employees who had signed them were without such authority. Of these prior tickets, only one had been signed by Newton. One had been signed by Hawkins (the foreman), two by Criss (a pipefitter), and three by Barrett or Cullen, neither of whom is identified in the record. Moreover, Rourke’s contention overlooks the uncontroverted evidence that Har-Con did not become aware of the existence of the indemnity provisions until after Newton had signed the delivery ticket in question.

As noted above, the doctrine of apparent authority is based on estoppel. Chastain v. Cooper & Reed, supra. It is essential to the application of the doctrine of estoppel that the person claimed to be estopped have had knowledge of all material facts at the time of the conduct alleged to constitute the basis of the estoppel. Hallmark v. United Fidelity Life Ins. Co., 155 Tex. 291, 286 S.W.2d 133 (1956); Richey v. Miller, 142 Tex. 274, 177 S.W.2d 255 (1944). Such knowledge may be imputed where the party against whom the estoppel is asserted “has knowledge or information of facts sufficient to put him upon inquiry which if reasonably pursued would lead to the discovery of the controlling fact . .” Champlin Oil & Refining Co. v. Chastain, 403 S.W.2d 376, 403 (Tex.1965).

It is undisputed that Har-Con, through its officers and agents, did not have actual knowledge of the existence of the indemnity provisions at the time Newton signed the ticket in question. Thus estoppel would arise only if this knowledge is imputed to them. They were aware, however, of no facts sufficient to put them upon inquiry, nor were they in such a position that they ought to have been aware of the indemnity provisions. Booth Fisheries Corp. v. Eardley, 233 S.W.2d 872 (Tex.Civ.App.—El Paso 1950, writ ref’d, n. r. e.). There had been no discussions or negotiations regarding indemnity provisions or any of the terms located on the reverse side of the delivery ticket. Har-Con’s orders for scaffolding equipment were not placed by Newton or any of the employees at the Galveston job sites, but were placed through Har-Con’s Houston office. There is no evidence that, at the time these orders were placed and accepted, Rourke Rental gave any indication that the deliveries would be subject to any additional terms. Newton was not aware of such provisions, nor had Rourke Rental’s delivery man, Meyer, given any indication that the delivery ticket contained contractual provisions or that it was intended for anything other than proof of delivery. In fact, from Meyer’s testimony it is clear that even he did not believe that any other use was intended. In response to the question of why he had someone sign the form, Meyer testified that “if I wouldn’t have nobody to sign this form, my scaffold could disappear. Who got it, who is responsible for it?” When asked if he meant that the delivery ticket’s purpose was simply to acknowledge receipt of the delivery, Meyer responded by saying, “that it was delivered, and it is delivered in good order, and we got somebody to hold responsible for the scaffold.” We therefore are unable to find in the prior dealings between Har-Con and Rourke Rental any basis for a finding of apparent authority.

Rourke Rental also relies on Newton’s position as general superintendent of the Galveston area to support the jury’s finding of apparent authority. It contends that Har-Con, by placing Newton in this position, created a situation in which Rourke Rental could have reasonably believed that Newton had the authority to bind Har-Con to the indemnity provision. It emphasizes Newton’s responsibility over more than one job site, and his testimony that he was the head man for Har-Con in the Galveston area.

In certain situations, appointing a person to a position may be sufficient in itself to create apparent authority. Thus statements by a local credit manager and a local manager may bind their company, Shahan-Taylor Co. v. Foremost Dairies, 233 S.W.2d 885 (Tex.Civ.App.—San Antonio 1950, writ ref’d n. r. e.); so also may a bank be responsible for actions by its executive vice president where the president was never active in bank affairs. Insurance Co. of North America v. Fredonia State Bank, 469 S.W.2d 248 (Tex.Civ.App.—Tyler 1971, no writ). However, apparent authority in such cases exists only as to those things ordinarily entrusted to one occupying such a position. Shahan-Taylor Co. v. Foremost Dairies, supra; United States Cold Storage v. Richards, 99 S.W.2d 697 (Tex.Civ.App.—Fort Worth 1936) aff’d, 131 Tex. 148, 112 S.W.2d 445 (1936); Restatement (second) of Agency § 27, comment a (1957).

We believe that, as a matter of law, the signing of such broad indemnity contracts is not a duty ordinarily entrusted to a person of Newton’s position. Newton was described variously as a “general superintendent of the Galveston area,” “field superintendent,” “job superintendent,” and “general foreman.” At the time of the accident, he was supervising four or five jobs in the Galveston area. The number of Har-Con employees at each job site was usually three or four, although the job at the Flagship Hotel required from six to eight. Newton’s duties involved supervising and directing the work at the job sites, through instructions to the various foremen. He was not in charge of acquiring supplies, other than small items, but would order them through Har-Con’s office in Houston. His salary was paid on an hourly basis, as set by a union contract, which also described his general duties and responsibilities.

Contracts indemnifying one against his distribution of defective products should be viewed as exceptions to the usual business practice, in the same manner as those indemnifying one against his own negligence. Spence & Howe Const. Co. v. Gulf Oil Corp., 365 S.W.2d 631 (Tex.1963). As evidenced from the facts in this case, they may have great financial impact on the parties, and are therefore not of the kind ordinarily executed by a superintendent of job sites. The mere fact that Har-Con employed Newton in such a position is not evidence upon which to base a finding of apparent authority to execute an indemnity agreement.

There is an additional reason why Newton’s position as superintendent does not support a finding of apparent authority. Such authority cannot be established except by facts known to the party dealing with the agent and relied upon by him in such dealings. Bluebonnet Oil & Gas Co. v. Panuco Oil Leases, Inc., 323 S.W.2d 334 (Tex. Civ.App.—San Antonio 1959, writ ref’d n. r. e.); Shahan-Taylor Co. v. Foremost Dairies, supra. There is no evidence that Rourke Rental was relying on Newton’s position as superintendent when the delivery ticket was signed. Meyer, the delivery man, testified that it did not make any difference who signed the ticket. Such person could have been a mere pipefitter, so long as he worked for Har-Con. Any claim of reliance by Rourke Rental is further negated by the fact that Newton had signed only one of the seven prior delivery tickets signed by Har-Con employees. One had been signed by Hawkins, the foreman, two by Criss, a pipefitter, and three by Barrett or Cullen, neither of whom is identified in the record.

Consequently, we hold that the trial court did not err in disregarding the jury finding of apparent authority, and in granting judgment non obstante veredicto for Har-Con, nor did it err in refusing to submit additional issues relating to that doctrine.

Rourke Rental argues that, even if Har-Con was not bound by the indemnity provision at the time Newton signed the delivery ticket, it later ratified the agreement by accepting its benefits and failing to disaffirm it. This contention fails for the same reason that apparent authority cannot be based on the prior dealings between Har-Con and Rourke Rental. There was no evidence that Har-Con was aware of the existence of the indemnity provision, nor was there evidence from which such knowledge could be imputed. Since the party alleged to have ratified an agreement must have knowledge of all material facts, Frazier v. Wynn, 472 S.W.2d 750 (Tex.1971); Jamail v. Thomas, 481 S.W.2d 485 (Tex.Civ.App.—Houston [1st] 1972, writ ref’d, n. r. e.), there can be no ratification in this case, and we conclude that the trial court did not err in refusing to submit issues on this theory.

Our conclusion that Har-Con was not bound by the agreement to indemnify Rourke Rental makes it unnecessary to consider the remaining points of error.

The judgment of the Court of Civil Appeals is affirmed.

Dissenting opinion by DANIEL, J., in which STEAKLEY and DENTON, JJ., join.

DANIEL, Justice

(dissenting).

I respectfully dissent.

Upon the doctrine of strict products liability, the majority upholds a judgment of $303,000 for personal injuries against the lessor of certain component products (four 2" x 10" boards 8 feet long) of an unassem-bled scaffold even though it is undisputed that the products were in sound condition when they were delivered.

This result is based upon jury findings that the failure to have additional products (cleat-type devices) affixed to the scaffold boards rendered them defective and that such failure was a producing cause of the accident.

The jury failed to find that the lessor, Rourke Rental, was negligent in supplying the scaffold boards without cleat-type devices, and I think undisputed evidence precludes recovery against Rourke on the theory of strict liability.

Garza, the injured plaintiff, was an employee of Har-Con Engineering Company, a large industrial contractor which had much experience in the erection and use of scaffolds. Garza’s accident occurred in May of 1965, when he fell from a scaffold erected on the job site by Har-Con. He received workmen’s compensation from Har-Con’s carrier, which was awarded $35,326 of Garza’s recovery against Rourke Rental in this suit. It is undisputed that Har-Con exercised full responsibility for ordering, renting, and erecting the scaffold equipment. It rented the unassembled scaffolding from Rourke Rental, a one-employee family corporation which was a principal supplier of such equipment in the Galveston area. The 21 items or products making up the unas-sembled scaffold rented by Har-Con from Rourke were listed on a receipt signed by Har-Con’s superintendent. Above his signature were the words: “Received the above in good order subject to the terms and conditions on reverse side.” On the back of the receipt were various terms relating to title, use, payment for destruction or loss, repossession, indemnity against claims of other parties, and a provision reading: “LESSEE agrees that use of the leased equipment shall be construed as an absolute acknowledgment by LESSEE that when delivered to LESSEE by COMPANY the equipment was in good order and repair, was properly erected and was in all respects adequate, sufficient and proper for the purpose for which it was intended.”

The scaffold boards are the only products complained of in this case, and that complaint goes solely to the absence therefrom of devices which would have rendered them safer for use as scaffold boards.

Heretofore this Court has spoken of the doctrine of strict liability as being applicable when the product itself is “in a defective condition” and “unreasonably dangerous” to the user. Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.Sup.1969); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup.1967). See also Metal Window Products Co. v. Magnusen, 485 S.W.2d 355 (Tex.Civ.App.1972, writ ref. n. r. e.) and Restatement (Second) of Torts § 402A (1965). In my opinion, both of these essentials are absent as a matter of law in this case. It is undisputed that the products in this case, the scaffold boards delivered by Rourke Rental, were in good condition. There is no allegation or evidence that these products were in themselves defective. In upholding the judgment on the finding that failure to affix other products (cleat-type devices) on the scaffold boards rendered them defective, the Court gives no significance to the undisputed evidence that the boards and cleat devices are separate products, each being a component of scaffolding equipment which can be rented the same as frames, braces, and other components; that the lessor and party responsible for assembling and erecting the scaffold in question was Har-Con, whose employees did in fact assemble and erect it; and that the absence of cleats on the boards was open and obvious to the superintendent and employees of Har-Con and to any casual observer at the time the boards were delivered to Har-Con.

It is also undisputed that some contractors in the Galveston area use scaffold boards without cleats; that Har-Con rented scaffold boards without cleats from Rourke Rental on numerous previous occasions; that during the past 15 years Rourke Rentals had not rented scaffold boards with cleats; and that if cleats were added by Rourke there would have been an additional charge for them.

What if Har-Con had specifically stated in its order that it wanted scaffold boards without cleats? Would Rourke Rental then be liable to Har-Con employees under the doctrine of strict liability if it furnished the scaffold boards as directed by Har-Con? Surely not. Yet that is precisely the effect of the situation which exists in this case. There is no evidence that Har-Con ordered boards with cleats. The boards were actually delivered in sound condition by Rourke Rental. No defective conditions having been shown in the products as ordered and delivered, recovery upon the doctrine of strict liability should not be permitted.

Further, the absence of cleats on the scaffold boards was open and obvious to the casual observer at the time of their delivery by Rourke to Har-Con. The condition of the boards was not in any manner concealed. Under such circumstances the boards should not, as a matter of law, be regarded as unreasonably dangerous. The dissenting opinion of Justice Evans in the court of civil appeals adequately deals with this additional reason why strict liability is inapplicable. I agree with his opinion.

STEAKLEY and DENTON, JJ., join in this dissent.

      . J. E. Rourke died prior to trial, and the suit was continued against his estate by and through his wife, Elzie Pauline Rourke, in her capacity as Independent Executrix and community survivor.

      . The evidence indicates that cleats are usually produced out of 2" x 4" lumber by cutting strips equal to the widths of the scaffolds boards so that they may be nailed across the underneath sides of both ends of the scaffold boards to prevent them from slipping on the steel scaffold frames. To equip the boards in question with cleats would have required eight of such 2" x 4" strips.


source: Caselaw Access Project

author: DENTON, Justice. STEAKLEY, Justice

license: Public Domain

text:
    The CITY OF McALLEN et al., Petitioners, v. The EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, Respondent.
    No. B-5186.
    Supreme Court of Texas.
    Nov. 12, 1975.
    Rehearing Denied Jan. 14, 1976.

      Rankin, Kern, Martinez & Jones, Inc., Rob Kern and H. H. Rankin, Jr., McAllen, for petitioners.
    Adams, Graham, Lewis, Jenkins, Jones & Graham, J. Perry Jones, McAllen, Hackler, Londerholm, Speer, Vader & Austin, Robert C. Londerholm and Eugene T. Hackler, Olathe, Kan., for respondent.
   DENTON, Justice.

The Evangelical Lutheran Good Samaritan Society brought this suit to enjoin the City of McAllen and the McAllen Independent School District from levying and collecting ad valorem taxes on an intermediate nursing home owned and operated by the Society in McAllen. The trial court issued the injunction prayed for upon concluding that the Society’s operation of the facility met the requisites of a purely public charity and therefore was exempt from taxation under the terms of Article 8, Section 2 of the Texas Constitution and Article 7150, Section 7 of Vernon’s Texas Civil Statutes. The court of civil appeals affirmed, holding that profits realized were used for permissible purposes, that no one was denied admission to nor discharged from the nursing home because of inability to pay, and that the Society assumed a burden that would otherwise be an obligation of the community or the state. 518 S.W.2d 557. We affirm the judgments of the courts below.

The Evangelical Lutheran Good Samaritan Society is a non-profit corporation operating a facility which provides intermediate nursing home services in McAllen, Texas. Additionally, the Society presently operates some 170 institutions in 21 states, with 116 of the institutions serving as nursing homes such as the one located in McAllen. The management structure of the Society is composed of an executive director, an'associate director and eight regional directors who supervise the administrators of each individual facility, as well as a board of directors, made up of independent businessmen and ministers, that makes policy decisions for the Society.

Because of the status of the nursing home as an intermediate care facility, patients admitted must be under the care of a physician. The services rendered are analogous to those rendered by hospitals in that they provide the same care that hospitals furnish to patients convalescing from surgery or being treated for illness not requiring surgery. The services are limited to a large extent to the aged and infirmed. Daily rates charged to those admitted are based on the level of care that the patient requires as well as a determination of whether the patient is classified as a private or welfare patient. Welfare patients of the Society’s McAllen home are charged a lesser rate than are those patients who are able to pay the full cost of their services. More than one-half of the patients at the McAllen facility are welfare patients. For each welfare recipient, the home received less than the average daily cost of care for each welfare recipient. The remaining portion of the cost of their treatment for which they are unable to pay is absorbed by the Society. However, often the situation is presented where a patient has a private source of funds which entitles him to only supplemental welfare payments. These supplemental payments do not entirely cover the cost of providing care and if the patient chooses not to pay the remainder out of his own funds, the nursing home must make up the difference. Approximately 10 percent of the patients at the McAllen home fall into this category of requiring the nursing home itself to undertake part of the burden of paying for their health care needs. There are no patients in the McAllen home who completely fail to contribute toward the payment of their medical care. Because not all patients accepted pay the cost of their care, and to insure that the operation of the nursing home pays for itself, the rates of private patients have been periodically adjusted upwards. The McAllen home, however, continues to operate at a substantial loss, showing a loss of $90,400 in 1972 and $39,000 in 1973.

This court has uniformly applied the definition of an institution of purely public charity as set out in City of Houston v. Scottish Rite Benevolent Association, 111 Tex. 191, 198-99, 230 S.W. 978, 981 (1921) which is to the effect that:

[T]he Legislature might reasonably conclude that an institution was one of “purely public charity” where: First, it made no gain or profit, second, it accomplished ends wholly benevolent; and, third, it benefited persons, indefinite in numbers and in personalities, by preventing them, through absolute gratuity, from becoming burdens to society and to the state.

The City of McAllen and McAllen Independent School District contend first that the Society has placed itself outside of the above definition in that the Society’s overall operations have generated profits. The testimony instead reflects that profits realized are used for mortgage payments, debt service, capital improvements and other activities directed at sustaining and furthering the Society’s benevolent activities. As mentioned earlier, there is no capital stock, no dividends have ever been paid to anyone, nor has there been any distribution of property owned by the Society to anyone. The law is well settled that the proscription against an institution’s realization of “gain or profit” refers to gain or profit by private individuals or the accrual of distributable profits. Harris v. City of Fort Worth, 142 Tex. 600, 180 S.W.2d 131 (1944); City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872 (1937); Santa Rosa Infirmary v. City of San Antonio, 259 S.W. 926 (Tex.Comm’n App.1924, jdgmt adopted). Therefore, the fact that the net result of the Society’s endeavors was the acquisition of profit, would not subject the organization to taxation because the profits were used for the permissible purposes of maintaining or expanding the Society’s operations. City of Dallas v. Smith, supra; Santa Rosa Infirmary v. City of San Antonio, supra.

The contention is also made that the Society has failed to meet the requisites of a purely public charity in that it was not shown that the Society’s services benefited an indefinite number of persons through the extension of absolute gratuities, thereby relieving a burden that might otherwise be placed upon the community and the state. The record discloses that patients admitted to the nursing home who are able to do so are required to pay for the services rendered; and, in some cases the families or relatives of the patients make such payments. In the case of indigent patients who do not have families who can or will contribute, payments are generally made by the State Welfare Department. The Society however, has established a policy to the effect that “no person who applies for treatment or care is denied admission or once admitted is discharged because of poverty or riches, creed, station or color.”

The question is whether the Society has, with its dedication of the McAllen home to charitable purposes, accompanied this by actual use in fact of the property for such purposes; because a mere charter declaration of a worthwhile purpose will not make an institution one of purely public charity if it is not one in fact. The City of Waco v. Texas Retired Teacher Residence Corporation, 464 S.W.2d 346, 348 (Tex.1971); Hilltop Village, Inc. v. Kerrville Independent School District, 426 S.W.2d 943, 947 (Tex.1968); River Oaks Garden Club v. City of Houston, 370 S.W.2d 851, 856 (Tex.1963). The above-cited open admissions policy appears to be one actively administered by the Society. Evidence presented at the trial reflected that although some compensation is received from all patients, either directly from paying patients or indirectly through welfare assistance, some 10 percent of the patients at the McAllen facility fail to pay the cost of their care. The evidence in the record that no one has ever been denied admission nor discharged because of inability to pay is uncontradicted.

In this context, the petitioners also point to the requirement that a purely public charity dispense “absolute” gratuities, and argue that the policy of requiring those who can pay to do so and the making of supplemental payments by the Society for those who cannot pay all of their costs does not meet the test. The term “absolute” should not be so construed. Rather, a more reasonable application of the term would require that gratuities which are extended be of an unconditional nature. Furthermore, it is well settled that the fact that paying patients predominate over those unable to pay does not detract from the charitable nature of the service rendered. Santa Rosa Infirmary v. City of San Antonio, supra; see Annot., 37 A.L.R.3d 1191 (1971). Reliance upon percentages of paying patients versus non-paying patients, however, should not be the controlling factor. With the advent of present day social security and welfare programs, the traditional concept of charity, involving the extension of free services to the poor and alms-giving, will be rarely found since wide ranging assistance is available to the poor under such programs. Furthermore, the courts have defined charity to be something more than mere alms-giving or the relief of poverty and distress. See, e. g., San Antonio Conservation Society, Inc. v. City of San Antonio, 455 S.W.2d 743 (Tex.1970); Frederick a Home for the Aged v. San Diego County, 35 Cal.2d 789, 221 P.2d 68 (1950). The ultimate consideration then, should be based upon an evaluation of the total operation of the institution engaged in humanitarian activities whose services are rendered at cost or less and which are maintained to care for the physical and mental well-being of the recipients. By that total operation the institution must assume, “to a material extent, that which otherwise might become the obligation or duty of the community or the state”. River Oaks Garden Club v. City of Houston, 370 S.W.2d 851, 854 (Tex.1963); City of Houston v. Scottish Rite Benevolent Association, 111 Tex. 191, 230 S.W. 978 (1921).

Although the petitioners do not directly attack the Society’s Charter declaration relative to the dedication of its properties as not being in compliance with this Court’s holding in Hilltop Village, Inc. v. Kerrville Independent School District, supra, we think the Charter declaration and pledge by the Society here is at variance with the requisites set out in Hilltop Village, Inc. There it was held the institution, in order to meet the requirements of the Constitution and statutes for exemption from taxation, must pledge its property and assets in perpetuity to the relief of persons in financial need and to the assistance in obtaining care.

Here the Society’s Articles of Incorporation provide that the Society is not organized, nor shall it operate for pecuniary gain or profit, but rather that it shall engage in the ownership, operation and management of institutions such as the nursing home involved here as well as other benevolent work of a charitable and religious nature in order to promote the general health of the community. There is no capital stock, no stockholders, and no dividends of any kind that are paid, and the Articles further provide that upon dissolution and after payment of all debts, the Society shall distribute its remaining assets to a nonprofit fund, foundation or corporation which is organized and operated exclusively for charitable and religious purposes. It has often been held that a charitable institution is entitled to exemption of only that property which is used by the institution exclusively for purely public charity. By this it is meant that if the institution rents the premises to someone who does not qualify for the charitable exemption, though the revenue is used entirely by the institution in its work of pure charity, the premises are not exempt from taxation. Morris v. Masons, 68 Tex. 698, 703, 5 S.W. 519 (1887). Further, the owner may not permit its property to be used by organizations which exist for purposes which are not charitable. City of Houston v. Scottish Rite Benevolent Association, supra. It does not follow that every use of the property must be gratuitous. There may be hospital patients, for example, who fully compensate the institution for all services received, but the character of the institution and the charitable nature of the use of the property is not nullified. Santa Rosa Infirmary v. City of San Antonio, 259 S.W. 926 (Tex.Comm’n App.1924 jdgmt adopted). Nor does it follow that all religious or other benevolent activities must be excluded in the operation of the hospital or home. It is no fatal defect to join charitable and religious purposes; the exemption will not be withdrawn so long as the charitable requirements are met. We hold the Society’s dedication of the McAllen home to charitable purposes and the pledge of the property and assets, upon dissolution, to a non-profit fund, foundation or corporation organized and operated exclusively for charitable and religious purposes does meet the Constitutional and statutory requirements of a purely public charity. To the extent that our writing in Hilltop Village is inconsistent with what is said here, the former opinion is overruled.

One final contention raised by the City and the School District concerns the contention that the Society’s admissions procedure constitutes an impermissible obstacle to the admission of charity patients. The contention is that the respondent’s admission policies and practices are at least as objectionable as those of Hilltop Village, Inc. v. Kerrville Ind. Sch. Dist., 426 S.W.2d 943 (Tex.1968). We do not agree. In Hilltop the admission policy was stated in its bylaws to be a matter of negotiation and mutual agreement and each case being considered on its own merit. In contrast, the Society here has established the policy that “no person who applies for treatment or care is denied admission or once admitted is discharged because of poverty or riches, creed, station or color.” In holding Hilltop Village Inc. did not meet the requirements of the Constitution and Statutes of Texas for exemption from taxation as an institution of purely public charity, the court concluded “ . . . it is apparent that Hilltop Village is not accepting residents without regard to their financial circumstances nor is it bound to assume charitable obligations or to engage in dispensing relief to those in need.”

In the second trial of Hilltop Village, Inc. v. Kerrville Ind. Sch. Dist., 487 S.W.2d 167 (Tex.Civ.App. writ ref’d n. r. e.), the trial court again held the institution was not one of purely public charity. The institution’s charter and bylaws were amended to comply with this Court’s previous holding, and the Home’s administrator testified that no applicant had been turned down for lack of funds, but no one had been admitted exclusively on charity. The court of civil appeals held, however, that the evidence supported the implied finding of the trial court that Hilltop Village was not, in fact, accepting residents without regard to their financial circumstances.

In the present case the Society requires each prospective patient to obtain the signature of a “responsible party” as part of the admission agreement. The evidence reflected that this procedure was utilized not only for payment purposes but also for notification in the event of accident or death of the patient. Inasmuch as this would seem to comport with proper administrative procedures and the evidence was clearly to the effect that the inability to pay for one’s health care was never any obstacle to admission (as seen by the high ratio of welfare patients in the Society’s facilities in Texas), we conclude that the requirement of naming a “responsible party” does not constitute an impermissible obstacle to the admission of charity patients. As was stated in the Santa Rosa case in dealing with a similar procedure:

With respect to the admission of charity patients no obstacle appears to have been placed in the way of their reception other than a requirement that statements of the applicants, or other trustworthy persons, be furnished at the time of their admission, to fairly indicate that they were objects of charity and unable to pay for the services rendered them, and, while no claim was made that sick or afflicted were sought out to be made the recipients of charity, it does appear that the infirmary was available and open to those who applied for free treatment.

We hold that the Society’s McAllen facility has met the requisites of a purely public charity and is therefore exempt from taxation. Accordingly, the judgments of the trial court and the court of civil appeals are affirmed.

Dissenting opinion by STEAKLEY, J., in which McGEE and JOHNSON, JJ., join.

STEAKLEY, Justice

(dissenting).

I am unsure of the rule the Court has now established governing the exemption from taxation of charitable institutions, and of what has been done to our established precedents.

It was emphasized in Santa Rose Infirmary v. City of San Antonio, 259 S.W. 926 (Tex.Comm’n. App.1924, jdgmt adopted) that the assets of the charitable corporations there were “appropriately bound by both corporate charters to the exclusive purposes of their general charitable declarations and intentions.”

We said in River Oaks Garden Club v. City of Houston, 370 S.W.2d 851 (Tex.1963), that an organization is not an institution of purely public charity within the meaning of the constitutional exemption, “unless its funds, property and assets are pledged and used to provide for the basic needs of the sick, distressed and needy.”

We said in Hilltop Village, Inc. v. Kerrville Independent School District, 426 S.W.2d 943 (Tex.1968), that to qualify for the exemption, “the institution must be one whose properties and assets are pledged in perpetuity to the relief of persons in financial need.”

Here, as the Court recognizes, the Articles of Incorporation of the Society stipulate that its properties are to be owned, operated and managed in the accomplishment of “benevolent work of a charitable and religious nature”, and, further, that upon dissolution, the assets of the corporation shall be distributed “to a non-profit fund, foundation or corporation which is organized and operated exclusively for charitable and religious purposes.” It is thus apparent that the Society is not bound to the exclusive use of its properties for charitable purposes, i. e., the relief of those in want, sickness and distress, or those in financial need. Charity and religion are not the same when considered in the context of tax exemption under the Constitution and statutes of our State; and the use of properties for charitable and religious purposes is not the use of such properties exclusively for charitable purposes as heretofore required for tax exemption under the rationale of Santa Rosa, River Oaks and Hilltop Village. Overruling the latter where “inconsistent”, as the Court is now saying, leaves untouched the former decisions to the same effect, together with a profusion of questions unanswered. To illustrate: the Court now says “Nor does it follow that all religious or other benevolent activities must be excluded in the operation of the hospital or home.” Are we now saying that an institution may be part charity and part religious, or part something else, and yet be an institution of purely public charity as required by the Constitution for tax exemption; and that such an institution is nonetheless bound exclusively to charity? Or, that it no longer must be? Santa Rosa, supra, and cited in the opinion of the Court, recognizes that “the Constitution requires the property, as a prerequisite to its right to exemption, to be exclusively used by the charitable institution . . .” How can this be so if the property is used in part for religious or other benevolent activities? Are we now saying, further, that the properties and assets of an institution may be pledged at times to the relief of persons in need, and at such times the institution is tax exempt; whereas, later, and perhaps off and on, the pledge may be altered and the exemption lost? Must institutions claiming the tax exemption be annually examined by the taxing authorities to determine if its policies, or the current tax exemption pledge of its funds, property and assets, have either or both been changed since the last taxing date?

We said in City of Houston v. Scottish Rite Benev. Ass’n., 111 Tex. 191, 230 S.W. 978 (1921), that a requisite to charitable exemption is that the institution benefit “persons, indefinite in numbers and in personalities, by preventing them, through absolute gratuity, from becoming burdens to society and to the State.”

We said in River Oaks Garden Club, that the institution must assume “to a material extent, that which otherwise might become the obligation or duty of the community or the state.”

We said in Hilltop Village, that the properties and assets of the institution must be pledged in perpetuity to the relief of persons in financial need in obtaining the care they must have to prevent their becoming a burden on society.

The Court speaks here of the Society having established a policy to the effect that “no person who applies for treatment or care is denied admission or once admitted is discharged because of poverty or riches, creed, station or color.” The establishment of a policy is far different from being appropriately bound to the relief of a burden on society, the only fair, reciprocal and accepted basis for tax exemption in the first place. See Santa Rosa, supra. The Court cites no showing here whereunder the Society is precluded from modifying its current policy so as to utilize its funds and properties for a combination of charitable and religious purposes, or, indeed, for charitable purposes that may not relieve a burden that otherwise would be that of the community or of the State.

I would hold that the Society has not established its right to tax exemption under our precedents.

McGEE and JOHNSON, JJ., join in this dissent.


author: SAM D. JOHNSON, Justice.

text:
    The STATE of Texas et al., Petitioners, v. Richard L. SCHAEFER et al., Respondents.
    No. B-5392.
    Supreme Court of Texas.
    Dec. 17, 1975.
    Rehearing Denied Jan. 14, 1976.

      Haley, Fulbright, Winniford & Bice, W. C. Haley, Waco, for petitioners.
    Dunnam, Dunnam & Dunnam, W. V. Dunnam, Jr., Waco, for respondents.
   SAM D. JOHNSON, Justice.

This is a condemnation case wherein the State of Texas and McLennan County condemned .326 of an acre- out of a .559-acre tract located on, and for the reconstruction of, State and Federal Highway 31 and 84 in McLennan County, Texas. The property was owned by Richard L. Schaefer and his brother, Charles Schaefer, and had been used by them for the operation of a farm implement dealership. Trial to a jury re-" suited in a verdict of $25,000 for the property taken and $4,500 damage to the remainder. Judgment on the verdict was rendered by the trial court. The court of civil appeals affirmed. 523 S.W.2d 424. We reverse and remand to the trial court.

The basic issue to be resolved is whether a landowner may establish the market value of condemned property by testimony showing the costs incurred in rebuilding a new and somewhat dissimilar structure at an altogether different location.

The Schaefers’ .559-acre tract had been the location of their farm implement business for approximately fifteen years. Several buildings were located on the property and were used in the operation of the business. After the condemnation only one building was left on the remainder. Charles Schaefer testified that the property remaining after the condemnation was not suitable for the operation of the business in that it was not large enough. He further testified, over objection, that the business was relocated on the other side of the highway and a short distance west from the subject property.

The Schaefers conceded at the outset of the trial “that the sole and only question to be determined at this trial is the market value of the land taken plus damages, if any, to the residue of the property.” Charles Schaefer testified that the entire property was worth $57,000. His testimony reflects that this figure was computed by combining $30,000 “replacement cost” for the main building, $12,000 “replacement cost” for the other buildings, $8,000 “replacement cost” for paving and ramps, and $7,000 for the entire tract of land. He also testified that the land with the buildings taken by the condemnors had a value of $49,000 and that the remainder suffered $6,000 in damages. Richard L. Schaefer simply affirmed his brother’s opinion of the property’s market value.

The condemnors called two witnesses at the trial, both of whom qualified as expert appraisers. One of the witnesses testified that the value of the land and improvements was $12,195 and the damage to the remainder was $5,165, for a total loss of $17,360. The other witness estimated the value of the land and improvements at $12,-045 and the damage to the remainder at $3,030, for a total loss of $15,075. Using the income approach, one of the witnesses further testified that the value of the property was $15,325, based on an annual gross rental income of $4,147 and a net rental income of $2,670.

Prior to trial, the condemnors made a motion in limine to prevent the landowners from giving testimony relative to expenses incurred in moving their business, the cost of acquiring a new site for the business, and the cost of constructing improvements on the new site. The trial court sustained the motion as to the moving expenses and the cost of acquiring a new site for the business. However, the court overruled that part of the motion dealing with the cost of constructing improvements at the new business site.

The thrust of the landowner’s presentation at trial was to establish that the Schae-fers were entitled to compensation equal to the building costs incurred at the new site. Repeated questions by landowners’ counsel referred to the cost of building the new improvements at the new location. The new building, incidentally, appears to be somewhat different from the existing structures, some of which were fifteen years of age. Charles Schaefer testified that the new building was approximately equal in size to all of the structures at the old site and that the new building contained approximately three thousand square feet in the main building and approximately twenty-four hundred square feet in what was referred to as the shed area. Landowners’ counsel then inquired about the actual cost of construction at the new site.

“Q. Tell this jury how much it actually cost to construct, not some theoretical figure, but what it actually cost to re-build or to build the building you built in ’72 and ’73?”

After condemnors’ objection was overruled, the question was asked again in the following form:

“Q. Tell this jury whether or not it cost more than $10.00 a foot for the main building and $5.00 a foot for the shed?”

To such question, again after objection, Charles Schaefer responded, “Yes. It cost more.” Counsel for the landowners then asked how much the new structure cost. It was only in the face of strenuous objection that this question was withdrawn. In any event, the jury already heard sufficient testimony from the landowner to conclude that the new structure cost more than $30,-000 for the main building (3,000 square feet X $10 per square foot) and $12,000 for the shed area (2,400 square feet X $5 per square foot). It is to be noted that the $30,000 and $12,000 cost figures are the identical figures claimed by the landowner as the replacement costs of the old buildings located on the condemned property. It is apparent that the actual costs of construction in the new location were the basis, and the only basis, for the landowner’s so-called replacement cost figures; they find no other support in the record before the court.

In the closing argument, counsel for the landowners again referred to the actual costs expended in construction at the new location. Alluding to the landowner’s testimony that the new construction cost more than $10 a foot for the main building and $5 a foot for the shed area, landowners’ counsel argued that it was only fair and just that the landowners be made whole. The landowners’ counsel further argued, “Neither one of these men [the condemnors’ witnesses] who theoretically were supposed to be seeking justice, ever went out and talked to these people right over here and asked them ‘how much did it actually cost to do it?’ . . . Did any of them have the slightest concern to go over and ask these people exactly what it cost to re-build these buildings in substantially the same way?” The condemnors’ counsel promptly objected to this line of argument, but the objection was overruled.

Though the landowners conceded at the outset of the trial “that the sole and only question to be determined at this trial is the market value of the land taken plus damages, if any, to the residue of the property,” it does not appear that the landowners sought to establish the value of the land in terms of what it would bring in a transaction between a willing seller and a willing buyer, City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954). The landowners’ only attempt to prove market value was their testimony concerning the costs incurred in rebuilding at the new site. It is apparent that the landowners equated the market value of their old buildings with the cost of constructing the new building.

State v. Walker, 441 S.W.2d 168 (Tex.1969), was a similar condemnation action in which a part of a tract was taken for the enlargement of an existing highway. The larger portion of the improvements, which were commercial in nature, were situated on the property taken but two warehouses were located on the remainder. The landowner testified that he planned to tear down the buildings on the part taken and rebuild new and similar improvements (a filling station) on the remaining portion of his property. It was the landowner’s contention that to best utilize the remainder it would first be necessary to demolish and remove the two warehouses which were situated thereon. Over objection, the landowner testified to the cost of demolishing and removing these warehouses. It was the landowner’s theory that the cost of removal of these warehouses bore on the market value of the remainder and on what was necessary to put the remaining property to its highest and best use. This court, in reversing, held such testimony to be harmful error. Though the testimony in Walker, which was held to be harmful error, was confined to the landowner’s estimate of cost of demolition on his own remaining tract, the landowner in the instant case would go considerably beyond. Here the landowner would show new construction costs on an entirely different tract wholly separated from the remainder.

In City of Austin v. Cannizzo, supra, this court stated, “In the willing seller-willing buyer test of market value it is frequently said that all factors should be considered which would reasonably be given weight in negotiations between a seller and a buyer. . . . ” And depending on the particular circumstances, removal, reconstruction or replacement costs of improvements located on the property taken or the property remaining may or may not be a proper subject of inquiry. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, motion for rehearing overruled, 126 Tex. 604, 89 S.W.2d 979 (1936); City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176 (1951); State v. Zaruba, 418 S.W.2d 499 (Tex.1967). There is nothing in the foregoing cases however which authorizes the evidence complained of here. The entire focus in determining market value is directed on the property taken and the property remaining. The construction cost of a building other than the one condemned bears doubtful relevance to the market value of the condemned structure, particularly if the structures are dissimilar in size, materials or construction. This is especially true when the new structure is on property wholly removed from the property in issue. When it is also considered that the condemned structures in the instant case were standing for several years, the relevance of evidence pertaining to the cost of the new structure cannot be supported. In Gauley & E. R. Co. v. Conley, 84 W.Va. 489, 100 S.E. 290, Annot., 7 A.L.R. 157 (1919), the West Virginia Supreme Court of Appeals addressed a similar question. A railway company condemned a lot on which was located a horse and mule barn, and the owner then rebuilt his barn on another lot. The owner attempted to prove the market value of his old barn by evidence of the actual cost of constructing the new barn. The court held:

“Evidence of the cost of construction of a new barn on another site was improperly admitted also. The applicant pays the value of the old barn, and, out of that compensation or otherwise, the defendant should provide himself with a new one, if he needs or desires it. The condemnor is not required, in addition to such payment, to provide new buildings.” 100 S.E. 290 at 292-93.

The landowners contend that at least some of the testimony concerning the cost of constructing the new building was admitted without objection. The court of civil appeals agreed and held that by failing to make objections the condemnors waived their objection to the evidence. Our examination of the record reveals, to the contrary, that the condemnors’ counsel objected each time reference was made to the actual costs incurred by the landowners in construction of the new building at the new location. In any event, it is beyond dispute that the condemnors’ counsel made numerous, repeated, and strenuous objections to references by the landowners and their counsel to the cost of new construction at the new location. It was only over such objections, repeatedly made, that the testimony was admitted before the jury.

The landowners further contend that the questioned testimony, if error at all, was harmless error. The court of civil appeals has apparently so held. We do not agree. Condemnors sought its exclusion by motion in limine ; consistently made proper and timely objection each time it was offered; and further made proper and timely objection during argument to the jury. In State v. Walker, supra, this court held the erroneously admitted testimony to be harmful error by stating, “The testimony was harmful in that it placed before the jury a theory that the condemnor was liable for all costs necessary to put the remaining land to its highest and best use as a filling station.” In the instant case the testimony was harmful not only because it put before the jury an erroneous theory, but also because it put before the jury the only possible basis for the award that was made.

We reverse the judgments of the trial court and the court of civil appeals and remand the cause for a new trial.

      . Three special issues were submitted to the jury which inquired as to (1) the reasonable market value of the land taken, to which the jury answered $25,000, (2) the reasonable market value of the remainder immediately before the taking, to which the jury answered $6,500, and (3) the reasonable market value immediately after the taking, to which the jury answered $2,000.

      . Market value in the instant case was defined in the court’s charge in the following terms:
      “ ‘Reasonable market value,’ as that term is used in this charge, means the price the property will bring in cash when offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying.”


author: ODOM, Judge. ROBERTS, Judge

text:
    Pete CRUZ, Appellant, v. The STATE of Texas, Appellee.
    No. 50827.
    Court of Criminal Appeals of Texas.
    Nov. 19, 1975.
    Rehearing Denied Dec. 17, 1975.

      Charles W. Cromwell, Corpus Christi, on appeal only, for appellant.
    William B. Mobley, Jr., Dist. Atty., J. Grant Jones, Asst. Dist. Atty., Corpus Christi, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of murder with malice following a plea of guilty. The court assessed punishment at ten years.

Appellant contends first that his guilty plea was involuntary and the trial court therefore erred in overruling his motion for a new trial. The record reflects that he had negotiated a plea bargain with the prosecutor. In exchange for appellant’s plea of guilty to a charge to which he had a potentially meritorious claim of self defense, the State agreed to recommend a ten-year probated sentence. The trial court refused to follow the recommendation.

When appellant entered his plea of guilty, the trial court admonished him at length as to the consequences of such a plea. Following a procedure we have commended as the better practice, the trial court also addressed the appellant as follows:

“THE COURT: You filed an application for probation which the Court may consider, but there is no promise or guarantee that you will be placed on probation if you are found guilty. The Court is not obligated or bound to accept the recommendations of the District Attorney or your attorney on punishment or probation. The Court may consider such recommendations, but will also consider the evidence, and after considering the evidence, the Court will make up its own mind as to whether or not you deserve probation. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: And that is regardless of any recommendations made by the District Attorney or your attorney. Do you understand?
“THE DEFENDANT: Yes, sir, I do.
“THE COURT: This Court is not part of any plea bargain, if there was one, do you understand?
“THE DEFENDANT: Yes, sir.
“THE COURT: After these explanations do you still want to plead guilty?
“THE DEFENDANT: Yes, sir.”

In answer to other questions by the court, the appellant also stated that he was not pleading guilty because of any threats or promises or any consideration of fear, persuasion, or delusive hope of pardon.

In spite of these admonishments, appellant’s attorney was apparently shocked by the failure of the trial court to follow the prosecutor’s recommendation, for he testified as follows at the hearing on the motion for new trial.

“My name is Charles Cromwell. I represent Mr. Pete Cruz, and had recommended that he accept the District Attorney’s recommendation mainly on the basis that I had been practicing law here in Nueces County since 1968, and I have never been aware of any time when the Court did not accept the District Attorney’s recommendation, and had I known or felt like the Court would not have accepted the recommendation in this case, I would not have advised Mr. Cruz to enter his guilty plea, but would have advised him to plead not guilty and avail himself of the defenses that he has in this case. ... I had never had one of my own cases not followed, and wasn’t aware of any other attorney’s recommendation not being followed, and in the same respect this is what I view as a fiction in law; you are saying one thing, but it doesn’t necessarily mean what you are saying.
“THE COURT: It has never been a fiction in this Court, and never will be.”

Appellant in effect urges a rule of law wherein a defendant as a matter of right may withdraw a plea of guilty when the trial court refuses to follow a punishment recommendation of the prosecutor that is the result of a negotiated plea agreement.

Some courts have so held relying largely upon Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). It is not the holding of Santobello, which was that the prosecutor is bound by any promises made to the defendant insofar as his recommendation of punishment is concerned, but the rationale and language of Santobello that have inspired such holdings. That rationale is that plea bargaining is an integral part of our system of justice and as such should be brought out in the open; that a procedure that encourages regularity and certainty into such negotiations is laudatory; and that deviations and aberrations within the system tend to be arbitrary and are to be discouraged.

Accordingly, in some jurisdictions there exists the right for which appellant contends. These include the Third and Eighth Circuits and the States of Pennsylvania and Indiana. The Fourth Circuit has suggested it is amenable to such a rule. Language from the District of Columbia Circuit would be compatible with the rule. Two years ago the Fifth Circuit stated in dictum as follows:

“Of course plea bargains are an accepted mode of resolving criminal trials, Brady v. United States, 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; North Carolina v. Alford, 1970, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, and defendants who plead guilty are entitled to have the sentencing court know of them and to withdraw the guilty plea if the Judge declines to accept it. Santobello v. New York, 1972, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; Fontaine v. United States, 1973, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169; Johnson v. Beto, 5 Cir., 1972, 466 F.2d 478.”

United States v. Resnick, 483 F.2d 354, 358 (5th Cir.), cert. denied, 414 U.S. 1008, 94 S.Ct. 370, 38 L.Ed.2d 246 (1973). The Fifth Circuit, however, has recently declined to apply the rule in a case where “some new complaints came to the attention of the Court” that caused the trial judge to disregard the sentencing recommendation of the prosecutor. Bouchillon v. Estelle, 507 F.2d 622, 623 (5th Cir. 1975). Cf. United States v. Maggio, 514 F.2d 80 (5th Cir. 1975).

Many state courts have declined to afford the right here contended for but the decisions of these courts have been marked by lively discussions and numerous dissenting opinions.

This Court has frequently discussed its own views upon the issue. We have stood steadfast for the position that assessment of punishment is the province of the judge or jury, not the prosecutor or the defendant. As conceded by all, Santobello does not explicitly require either that the court accept the prosecutor’s recommendation or that the defendant be permitted to withdraw his plea after the recommendation is rejected. Galvan v. State, Tex.Cr.App., 525 S.W.2d 24; Trevino v. State, Tex. Cr.App., 519 S.W.2d 864; Valdez v. State, Tex.Cr.App., 507 S.W.2d 202; Kincaid v. State, Tex.Cr.App., 500 S.W.2d 487; Reyna v. State, Tex.Cr.App., 478 S.W.2d 481. Cf. Wilson v. State, Tex.Cr.App., 515 S.W.2d 274. We recognize that negotiated pleas are an integral and essential part of our system of criminal justice. In cases where the guilty plea is the result of a negotiated plea agreement, the trial court in exercising its authority to assess punishment also serves as a check upon oppressive or unfair bargains or those not in the public interest. Such a function may inure to the benefit of the defendant as much as the State.

Hence, we decline to restrict the trial court’s discretion in this area.

It is perhaps unfortunate that here the appellant chose a course of action that resulted in the denial of an opportunity to present a potentially meritorious defense. This kind of result has often been focused upon by courts in those jurisdictions who have felt that such denial constitutes arbitrariness, in view of the fact that the vast majority of sentence recommendations are accepted by trial courts. We believe that the majority of such recommendations are accepted because the trial court views them as just and in the public interest. Here, the trial court apparently believed that the appellant did not deserve probation. We are unable to say that he abused his discretion. Trevino v. State, Tex.Cr.App., 519 S.W.2d 864; Cisneros v. State, Tex.Cr.App., 501 S.W.2d 907; Saldana v. State, Tex.Cr.App., 493 S.W.2d 778. Appellant’s first ground of error is overruled.

We are nevertheless convinced that justice would be better served by a procedure calculated to clear the atmosphere surrounding the plea negotiating process. Defendants now commonly deny during an Art. 26.13, V.A.C.C.P., inquiry that any promises have been made that induced a plea of guilty, when in fact the prosecutor has promised to recommend a certain sentence in exchange for the plea. The deceptive denial stems from the fear that the trial court will not accept the plea if the question is answered truthfully. The fear is misplaced because a plea bargain per se does not vitiate the voluntariness of a guilty plea. And we are persuaded that a defendant who lies upon that matter “is in no position to engage in a forthright exchange with the same judge at the same time when the question is the defendant’s understanding and relinquishment of his constitutional rights.” People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 393, 477 P.2d 409, 417 (1970).

The trial judges of this State already know that we commend the practice of informing defendants that the court is not bound by the sentencing recommendations of the prosecutor, as the judge did in this case. In addition, we commend as better practice a procedure whereby the trial judge on the record informs the defendant and the attorneys for both the defense and the State that they have a duty to enumerate to the court and upon the record the details of any agreements that may have been reached as a result of plea negotiations. The instances in which defendants are misled by their own attorney or the State’s attorney should be reduced, as well as the instances in which defendants feel they have been misled or deceived. We can perceive no valid reason why in this manner the whole subject of plea bargaining should not be brought out of the shadows and into the open light of day. The only effect can be more even-handed justice, a better informed exercise of judicial discretion, and an increase in the extent to which defendants feel the criminal justice system has treated them fairly.

The second ground of error contends that the trial court erred in not withdrawing appellant’s plea of guilty after an issue had been raised as to his sanity.

When the trial court, in accordance with Art. 26.13, Y.A.C.C.P., questioned appellant as to his plea of guilty, he learned that five years prior to the hearing he had been committed to a mental hospital “for about a month.” Commendably, the judge immediately questioned appellant at some length as to the circumstances of that confinement and as to his present sanity and competence to stand trial. The appellant stated that he had never been mentally ill, that the psychiatrist at the hospital “said there wasn’t anything wrong with me” and therefore he was discharged; that he had undergone no psychiatric care or treatment within the previous five years; that he understood what he was doing at the time of the alleged offense; and that he understood the court proceedings. His attorney indicated that he felt his client was not suffering from mental illness. The court then accepted the plea of guilty.

At the hearing on the motion for new trial, appellant reiterated all the above and further explained his earlier confinement as follows:

“The reason I was there was because I was thought to be insane, but actually what was the matter with me was that I had been operated, you know, several times, to be exact about nine or ten times. I have had surgery, you know, on my stomach, and after taking so much medication I was strung out on it, and when I withdrew from it, it looked as if I was insane. However, when I was placed in that hospital, about a month and a half later, I was reacting proper, you know, and they told me I had never been insane, and the only thing was the matter was that I had been addicted to drugs, and that is the way I got addicted to drugs, after so many surgeries.”

The fact of admission to a mental hospital coupled with an explanation does not require a separate hearing to determine present sanity. Article 5547-83(b), V.A. C.S.; Art. 26.13, V.A.C.C.P.; Bledsoe v. State, Tex.Cr.App., 519 S.W.2d 646; Nichols v. State, Tex.Cr.App., 501 S.W.2d 333; Ainsworth v. State, Tex.Cr.App., 493 S.W.2d 517. The trial court is not required to hold the hearing unless he has a reasonable doubt as to whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and as to whether he has a rational as well as factual understanding of the proceedings. Wages v. State, Tex.Cr. App., 501 S.W.2d 105.

The issue of insanity was not raised by sufficient evidence in the instant case. The State is not required to present any rebuttal evidence where such issue is not sufficiently raised. Nichols v. State, supra. No abuse of discretion has been shown. The ground of error is overruled.

The judgment is affirmed.

DOUGLAS, J., not participating.

ROBERTS, Judge

(concurring).

I concur in the results since appellant at no time attempted to withdraw his plea of guilty.

      . The appellant and another witness testified that the deceased had previously threatened appellant’s life. It was stipulated that another witness would have testified that immediately before the shooting deceased cursed appellant, threatened to kill him, and made a motion toward his pants pocket. Police photographs taken at the scene of the shooting show the handle of a pistol protruding from the pants pocket of the corpse. The deceased was a dealer in narcotics and had been convicted of felonies. Although the appellant admitted he was a former heroin addict, he had never been convicted of a felony.

      . See Galvan v. State, Tex.Cr.App., 525 S.W.2d 24, 26; Trevino v. State, Tex.Cr.App., 519 S.W.2d 864, 868.

      . Reliance is also frequently placed upon the American Bar Association Standards relating to Pleas of Guilty, Approved Draft, 1968, Sec. 3.3(b), and the American Bar Association Standards relating to the Function of the Trial Judge, Approved Draft, 1972, Sec. 4.1(c). See also Rule 11(e), Fed.Rules Crim. Proc., 18 U.S.C.A. , effective Dec. 1, 1975.

      . United States ex rel. Culbreath v. Rundle, 466 F.2d 730 (3rd Cir. 1972).

      . United States v. Gallington, 488 F.2d 637 (8th Cir. 1973), cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974).

      . Commonwealth v. Wilson, 335 A.2d 777 (Pa.Super.Ct.1975); Commonwealth v. Barrett, 223 Pa.Super. 163, 299 A.2d 30 (1972); Rule 319(b), Pa.R.Crim.Proc., 19 P.S. Appendix.

      . Watson v. State, 300 N.E.2d 354 (Ind.1973).

      . United States v. Truglio, 493 F.2d 574, 580 n. 3 (4th Cir. 1974).

      . United States v. Ammidown, 162 U.S.App. D.C. 28, 497 F.2d 615 (1973).

      . See People v. Selikoff, 35 N.Y.2d 227, 360 N.Y.S.2d 623, 318 N.E.2d 784 (N.Y.Ct.App.1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed. 2d 822 (1975); State v. Farris, 320 A.2d 642 (N.H.1974); Commonwealth v. Stanton, 317 N.E.2d 487 (Mass.App.Ct.1974); Huffman v. State, 499 S.W.2d 565 (Mo.Ct.App.1973); State v. Ramos, 85 N.M. 438, 512 P.2d 1274 (N.M.Ct.App.1973); People v. Cheshier, 3 Ill.App.3d 523, 278 N.E.2d 93 (1972). See Ill.Rev.Stats.1973, ch. 110A, Sec. 402(d)(2); People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (1970).

      . See also Article 26.13(a)(2), V.A.C.C.P., as amended.

      . Accord, American Bar Association Standards relating to Pleas of Guilty, Approved Draft, 1968, Sec. 1.5. See the American Bar Association Standards relating to the Prosecution Function, Approved Draft, 1971, Secs. 2.8(a), 4.3(b); American Bar Association Standards relating to the Defense Function, Approved Draft, 1971, Secs. 1.1(d), 5.1(b), 7.5(a).

      .See Bledsoe v. State, Tex.Cr.App., 519 S.W.2d 646.