author: POPE, Justice. STEAKLEY, Justice,

text:
    STANDARD FIRE INSURANCE COMPANY, Petitioner, v. Arthur REESE, Jr., Respondent.
    No. B-7799.
    Supreme Court of Texas.
    June 6, 1979.

      Thurlow & Hennessey, Edward J. Hen-nessey and Randall D. Wilkins, Houston, for petitioner.
    Stevens F. Mafrige and George A. Sell-nau, Houston, for respondent.
   POPE, Justice.

The question presented by this appeal is whether plaintiff, Arthur Reese, Jr., sustained his burden to prove that a jury argument made by counsel for Standard Fire Insurance Company constituted reversible error in the absence of an objection or motion that the court instruct the jury to disregard the argument. The Industrial Accident Board had awarded Reese $1,120.00 for temporary total incapacity, $2,528.10 for permanent partial incapacity and $1,329.00 for medical expenses, a total of $4,977.10. Standard appealed, and the trial court rendered judgment for Reese on a jury verdict for the sum of $870.00 for total incapacity for the period from March 14,1975, to June 10, 1975; medical benefits in the sum of $1,239.00, and interest in the amount of $179.91, for a total of $2,278.91. The judgment should have been for $2,288.91. Mr. Reese, the worker, appealed from that judgment, and the court of civil appeals reversed the judgment by reason of a jury argument. 567 S.W.2d 861. From our review of the whole record, we conclude that the argument by Standard’s attorney was neither improper nor reversibly harmful. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Counsel for Standard Fire Insurance Company made this jury argument which is the basis for the reversal by the court of civil appeals:

But that won’t make this claim valuable enough. So, we have to run in Dr. Bun-ing. Enter Dr. Buning, April 8, 1975, approximately three and a half weeks after this incident. Dr. Buning in Spring Branch, Mr. Reese, Astrodome. He drove by a thousand doctors between the Astro-dome and Spring Branch. Aren’t you curious as to why he went to Dr. Buning? Aren’t you curious as to why Mr. Mafrige sent him to Dr. Buning? Does not a sham or a plot evolve out of all of this? What does Buning do then? Let’s send him over to old Mort, give him the old 1-6-8-9-11-15 treatment. That’s good. That looks good on paper. We can pump on him for about six or eight weeks, build those medical bills up real high. The higher the medical bills, obviously he has got to be hurt if he has got all of those medical bills. It will look good in front of a jury. Does that not make itself abundantly clear to you? Does that not eat away at the credibility of this entire situation?

Reese’s counsel neither objected to the argument nor asked the court to give any instruction to the jury about it. Standard’s trial theory and its argument was that Reese had incurred unnecessary charges for physical therapy in the amount of $1,458.00 even though the treatments were doing him no good. Standard attacked the credibility of the worker’s claim in light of the evidence that Reese resumed regular employment a short time after his initial treatment, worked full time and earned more money than he had ever earned before. Standard’s counsel also argued that two doctors had examined Reese and released him as able to return to work, and those two doctors had not testified. He then argued that the evidence showed that Reese received therapy from April to June of 1975, was released from further treatments, but resumed those unnecessary treatments seven months later for the purpose of building up the amount of the medical expenses. He questioned whether Reese had any disability at all, and he argued that the decision in the case would turn upon Reese’s credibility. He then continued,

Maybe you all feel like I am rationalizing. Maybe I am. But Mr. Reese, when he tells you he is hurt and can’t do this and can’t do that and will never ever be the same again, maybe Mr. Reese really believes that. And if he does, then he is telling the truth. But it is not credible, folks. It is not credible when you put all of these facts together, when you put in the Mafrige-Bachynsky-Buning combination—
MR. MAFRIGE: Your Honor, I object. There is no evidence of any combination and he keeps making inferences and slanderous remarks and I strenuously object. He is outside the record.
THE COURT: You may reply to that on closing argument.

The argument was not improper because there was direct evidence, as well as inferences from the evidence, which supported the argument. Mr. Reese testified that he was on his job on March 14, 1975, performing his work as a cement worker. He was standing in about six inches of cement when he sustained a “pop” in his back. Another employee helped him step from the cement, and Reese’s employer immediately had him taken to the Torno Medical Center that was located in Pasadena near the job site. Dr. Torno examined and treated Reese for about a month. He prescribed physical therapy treatments which Reese received for an estimated five or ten times. Dr. Torno, in turn, referred Reese to a Dr. Podniac, an orthopedic surgeon. Both of those doctors, after about six weeks, dismissed Reese as able to return to work. At that point, Reese went to see Dr. Eric Bun-ing, whom he not previously known.

Dr. Buning’s office was at that time located in Spring Branch. Reese testified that he went to see Dr. Buning because his lawyer sent him. Mr. Mafrige was his lawyer. Reese also testified that he lived in South Park near the Astrodome. When Mr. Mafrige was questioning Reese, his client, there was this exchange:

“Q. How was it you got to Dr. Buning’s office?
“A. You sent me to Dr. Buning.
“Q. Your lawyer did?
“A. Yes.”

Reese was hurt on Friday, March 14, 1975; he went to see his lawyer four days later. There are three pharmacy bills in evidence. They are in the name of Arthur Reese but have typed on each of them the notation, “bill Steven F. Mafrige,” who was Reese’s attorney.

Dr. Buning, after examining Reese, prescribed physical therapy which he detailed on a printed prescription form. The prescription that Dr. Buning signed was not on Dr. Buning’s prescription form; it was on the prescription bearing the name of Mort Moriarty, L.P.T. (licensed physical therapist). Mr. Moriarty had his offices in the same building in which Dr. Buning was located. Mr. Moriarty testified that he and Dr. Buning were personal friends. Dr. Buning “would just come by and visit the office. He had time to kill,” he said.

Dr. Buning wrote two different prescriptions for physical therapy. The first one was for the treatments from April 8, 1975, until June 9, when they were terminated on orders from Dr. Buning. Dr. Buning wrote a second prescription about seven months later on January 5, 1976, calling for daily treatments for two to four weeks. On that same date Reese resumed his treatments, and they continued until March 5,1976. By that time the bill for physical therapy had grown to the amount of $1,458.00.

Dr. Buning died sometime about February, 1976, and Dr. Nicholas Bachynsky took over his office and patients. He saw Reese on March 2 and March 10, made an examination but prescribed no treatment. Dr. Bachynsky testified that he did not prescribe therapy treatments, because “I don’t think it would have any benefit to him.” Reese did not return to Dr. Bachynsky until November 2, 1976, and then, according to the evidence, because “The lawyer wanted him to come by for re-evaluatiori.” Dr. Bachynsky’s total charges amounted only to $50.00. He expressed the opinion that Reese suffered from pain caused by a nerve root impingement and also degenerative arthritis, that Reese did not have any symptom that could be called an objective one, that every symptom of the injury required his reliance upon the credibility of the patient, and that in his opinion, Reese had a sixty percent permanent disability. That opinion statement is the only evidence in the record of the extent of Reese’s incapacity-

The jury argument about Mr. Moriarty⅛ therapy treatments cannot be understood except in the context of this additional evidence. Mr. Moriarty testified that his billings listed twenty-one different kinds of therapy which he was capable of providing. They were numerically coded at the bottom of each statement. For example, the treatments he gave Mr. Reese were coded in this fashion, as he explained:

“Q. Like No. 1 is hot packs. No. 6 is ultrasound. No. 8 is massage. No. 9 is electrical stimulation. No. 11 is therapeutic exercise. And No. 15—
“A. Pelvic traction.
“Q. Intermittent pelvic traction, right. Now it looks to me like you gave him the 1-6-8-9-11-15 treatment every time he was there.
“A. Because that’s what was prescribed.”

Standard’s defense was that Reese’s claim was a weak one and had almost no medical basis. Two physicians released him as able to do work, and the evidence showed that he returned to work in 1976, worked continuously as a cement worker and earned more than he had ever earned before. Standard urged that the only evidence of any incapacity rested upon Reese’s own subjective statements, as Dr. Bachynsky acknowledged.

From this record, we conclude that there was direct evidence of a close relationship between Reese’s attorney, Mr. Maf-rige, and Dr. Buning, Morton Moriarty, and Dr. Bachynsky. Whether by cross-examination or advocacy, the relationship between witnesses and a party is properly weighed, evaluated, and tested. It is the jury’s function to evaluate the evidence in that context.

Standard’s argument that Reese “drove by a thousand doctors between the Astro-dome and Spring Branch” to see Dr. Buning was not improper. Hyperbole has long been one of the figurative techniques of oral advocacy. Such arguments are a part of our legal heritage and language. Shakespeare wrote about “a thousand blushing apparitions” and “a thousand innocent shames,” in Much Ado About Nothing. In the Tempest he wrote, “Now would I give a thousand furlongs of sea for an acre of barren ground”; in King Richard III, “My conscience hath a thousand several tongues, and every tongue brings in a several tale . in Hamlet, “And by a sleep to say we end the heartache and the thousand natural shocks that flesh is heir to”; in Hamlet again, “To be honest, as this world goes, is to be one man picked out of ten thousand,” and in Romeo and Juliet, he has Juliet saying, “A thousand times goodnight!” The method has often been employed to make a point.

The Harmless Error Rule

The harmless error rule is one that ebbs and flows. Its very existence contemplates that an error has been committed, but judicial expectations for perfect trials find presumed harm continually contending for a revival. In 1941, after an inconsistent history which saw appellate courts alternately range between a burden on the winner to prove no-harm to that of a burden on the loser to prove harm, Texas adopted Rules 434 and 503 and harmless error. Its intended effect was uncertain at first. See Airline Motor Coaches, Inc. v. Bennett, 144 Tex. 36, 187 S.W.2d 982 (1945); Myers v. Thomas, 143 Tex. 502, 186 S.W.2d 811 (1945); Rojas v. Vuocolo, 142 Tex. 152, 177 S.W.2d 962 (1944); Dallas Ry. & Term. Co. v. Hendricks, 140 Tex. 93, 166 S.W.2d 116 (1942).

Harmless error creeps back into the practice when subjective evaluations replace a more objective and structured testing of error. For that reason, decisions since 1941 have resisted the tide of presumed harm by surrounding the decision about reversibility with several tests. In the case of improper jury argument, the complainant must prove a number of things. He has the burden to prove (1) an error (2) that was not invited or provoked, (3) that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial, and (4) was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge. 3 McDonald, Texas Civil Practice § 13.17.2 (1970). There are only rare instances of incurable harm from improper argument. The complainant has the further burden to prove (5) that the argument by its nature, degree and extent constituted reversibly harmful error. How long the argument continued, whether it was repeated or abandoned and whether there was cumulative error are proper inquiries. All of the evidence must be closely examined to determine (6) the argument’s probable effect on a material finding. (7) Importantly, a reversal must come from an evaluation of the whole case, which begins with the voir dire and ends with the closing argument. The record may show that the cause is weak, strong, or very close. From all of these factors, the complainant must show that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence. Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596 (1953). Rules 434, 503, Tex.R.Civ.P.

There was evidence in this record, partly supplied by counsel for Reese, himself, which showed the close connection between the lawyers and those treating Reese. There was no objection to the first argument about which he now complains; there was no motion to instruct as to either of the two arguments. Reese’s counsel had the opportunity to reply and did so in his closing argument, and the argument was not so severe or prolonged as to amount to reversible error.

Precedents that arose prior to 1941 and hold that argument was prejudicial are unreliable, but even under the discarded rule of presumed harm, one who sat by while hearing an improper argument without objection or motion was not later heard to complain about it. Gulf, C. & S.F. Ry. Co. v. Greenlee, 70 Tex. 553, 8 S.W. 129, 131 (1888). A pre-1941 instance of the requirement that one promptly object and request a jury instruction to disregard the argument is Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054 (1940). In Ramirez, counsel argued that plaintiff’s suit was one that “stinks,” that plaintiff was a victim of a “scheme or design by somebody to use him,” that someone ought to be indicted for filing and prosecuting the suit, that defendants were not going to pay “blood-money” in the form of a settlement as had been exacted from others. The petitioner urged that the argument left the inference that plaintiff’s counsel conspired with plaintiff to bring the suit for some malicious or fraudulent purpose. Ramirez v. Acker, 124 S.W.2d 905, 909 (Tex.Civ.App.—Beaumont 1939), aff’d, 134 Tex. 647, 138 S.W.2d 1054 (1940). Since that argument was held curable even under the old rule of presumed harm, the brief argument in this case, to which there was no objection, a fortiori, was curable under the rule of harmless error. In Wade v. Texas Employers’ Ins. Ass’n, 150 Tex. 557, 244 S.W.2d 197, 199 (1951), this court noted the strength of the rule requiring timely objection to improper argument even prior to 1941 and wrote that the supreme court had gone to some length in holding that even strong appeals to prejudice become harmless when a jury is instructed to disregard them, “for which reason it is logical to require an objection and instruction.”

The injection of new and inflammatory matters into the case through argument has in exceptional instances been regarded as incurable by an instruction. An appeal to racial prejudice falls into the category. Texas Employers Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954). The use in argument of the epithets, “liar,” “fraud,” “faker,” “cheat,” and “imposter” in disregard of objections that were made was harmful. Southwestern Greyhound Lines, Inc. v. Dickson, 149 Tex. 599, 236 S.W.2d 115 (1951). The unsupported charge of perjury was incurable. Howsley & Jacobs v. Kendall, 376 S.W.2d 562 (Tex.1964). Those cases, similar to Texas Employers’ Ins. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958), show that an affront to the court and the equality which it must portray will be dealt with harshly. However, an argument in a condemnation ease that charged the condemnor with fraud was considered harmless and curable when there was no objection even when there was no support in the evidence for the argument. City of Dallas v. Andrews, 149 Tex. 609, 236 S.W.2d 609 (1951).

It is our opinion that Reese, by failing to object and press for an instruction at the time of the argument, waived his complaint. Turner v. Turner, 385 S.W.2d 230 (Tex.1964); Maston v. Texas Employer’s Ins. Ass’n, 160 Tex. 439, 331 S.W.2d 907, 910 (1960); Texas & N.O.R. Co. v. Sturgeon, 142 Tex. 222, 177 S.W.2d 264, 267 (1944).

In looking at the whole record, the state of the evidence, the strength and weakness of the case, and the verdict, we conclude that the jury carefully considered its verdict and the evidence. It made favorable findings for Reese on several issues. It found that Reese was injured, he suffered total incapacity for the period from March 14, 1975, to June 10, 1975, and the jury awarded him $1,239.00 for his medical, therapy and drug expenses covering that period. It denied all claims thereafter. During that period Dr. Buning charged $185.00 for his services, Morton Moriarty charged $972.00 for his therapy treatments, and drug bills amounted to $72.00 for a total of $1,229.00. The jury verdict drew a sharp line between the period during which, from the evidence, Reese did not and could not work and the time that he was able to work and did so.

The probabilities are that the jury would have reached its same conclusion from the evidence without regard to Standard’s argument. This is the evidence from the whole record. Two physicians released Reese to return to work. There was a long gap between the time Reese stopped seeing any doctor and when he returned. He did not see Dr. Buning from May 29 to January 5. He did not see Dr. Bachynsky from June, 1976, to November. Mr. Moriarty’s therapy treatments ceased during the period from June 9, 1975, to January 5, 1976. Reese went to see Dr. Bachynsky in March, 1976. It was Dr. Bachynsky, Reese’s doctor, who testified that all of Reese’s symptoms were only subjectively supported. It was Dr. Bachynsky who said that the therapy treatments that Dr. Buning prescribed were not beneficial and also that he never prescribed them. The jury accepted that judgment of Mr. Reese’s doctor by denying the claimed medical and therapy expenses incurred after June 9, 1976, the end of the total incapacity period. Reese testified that he went back to full-time work in four or five months after his injury. He said that he worked until each job was finished, returned to his union for the next assignment, was never discharged, and earned wages as a cement worker in excess of any prior time during his life. The probabilities are that the jury believed this testimony of Reese and his own doctor and that the jury rendered a careful verdict upon the basis of the evidence.

The judgment of the court of civil appeals is reversed and that of the trial court is affirmed.

STEAKLEY, Justice,

dissenting.

I am dismayed by the action of the Court in reversing the judgment of the Court of Civil Appeals by means of the holding that the jury argument here in question “was neither improper nor reversibly harmful.” We ought to confront more positively the particular seriousness in jury argument of attacks upon the professional ethics and integrity of opposing counsel.

In my view, and as held by the unanimous Court of Civil Appeals, 567 S.W.2d 861, the jury arguments were improper, without support in the evidence and by their very nature incurable. There can hardly be an accusation of more severity and seriousness than the charge that opposing counsel participated in a plot and joined in a combination with two medical doctors to manufacture medical testimony and to provide medical treatment not needed so as to impress a jury with inflated medical charges. Such conduct is calculated to prejudice the jury against the case of the client of the lawyer so charged, and of the medical witnesses presented in his behalf; furthermore, such accusations without foundation in the record magnify the all too prevalent and unjustified cynicism of the lay public with respect to the legal profession. It is a violation of legal ethics to make unfair or derogatory personal reference to opposing counsel. See also The Code of Professional Responsibility promulgated by this Court, governing the conduct of attorneys. In my view, the prejudice and harm to Reese from the jury arguments under review could not have been removed by withdrawal of the charges or by admonition of the court. But here the trial court in responding to an objection upon repetition of the accusation of a lawyer doctor “combination” said only that the accused counsel could reply in his closing argument.

I disagree with the supporting statement in the majority opinion that “there was direct evidence, as well as inferences from the evidence, which supported the argument.” From my examination of the record, there is a complete absence of any direct evidence of a “sham or plot,” or of a Mafrige [the lawyerj-Bachynsky [the doctor]-Buning [another doctor] combination”; or that Reese “drove by a thousand doctors” in reaching the office of Dr. Buning. Indeed, Standard does not claim otherwise in its Application for Writ. But it asserts there was evidence permitting the inference that Dr. Buning was interested only in helping build a case that Reese had suffered a back injury; and that this was at the request of counsel for Reese. I find no evidence in the record to support these claimed inferences. Nor can proof of the fact, if such is a fact, that Reese in going to the office of Dr. Buning drove by a thousand doctors, be supplied, as argued by Standard, as a matter of common knowledge “to any Harris County juror.”

I read the erudite majority as suggesting that hyperbole overrides the absence of supporting evidence. The precedential or supportable value of the writings upon which the majority relies would seem questionable, i. e., Shakespeare, John Milton, Alexander Pope, Robert Burns, William Wordsworth, Isaac Watts, Lord Byron, Thomas Percy, Samuel Taylor Coleridge, Alfred Lord Tennyson, Henry David Thoreau, John Ruskin, John Davidson, and Rudyard Kipling. I suggest our own writings are more in point.

In Gulf, C. & S.F. Ry. Co. v. Greenlee, 70 Tex. 553, 8 S.W. 129 (1888), this Court spoke in terms of whether the remarks to the jury were so plainly prejudicial to the other party as to demand that the verdict be set aside. Citing Greenlee, it was said in Wade v. Texas Employers’ Insurance Association, 150 Tex. 557, 244 S.W.2d 197 (1951), that we judge by the degree of the vice, not merely the subject matter of the argument, and that the distinction between arguments that are “curable” and those that are not has always been one of difficult application. We stated in Texas Employers’ Insurance Association v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954), that the true test is the degree of prejudice flowing from the argument, i. e., whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict. In addition, the Court noted that “We realize that in the course of a hotly contested trial lawyers are apt, even prone, to ‘pull off the gloves’; but lawyers are officers of the court and proper and ethical conduct requires that there be limitations on the extent to which counsel may go in the injection of prejudicial and inadmissible matters, whether by way of cross-examination of witnesses or by way of jury argument.” 266 S.W.2d at 859, (My italics).

This Court has heretofore considered jury arguments of an accusatory nature against opposing counsel similar to those under review here. It was recited in Lumbermen’s Lloyds v. Loper, 153 Tex. 404, 269 S.W.2d 367 (1954), that counsel for one party in effect accused counsel for the other party of suborning false testimony on the part of a medical witness; that while the accusation was not in the most positive or provocative words, the imjport was quite plain and was an unfair deduction from the record. It was assumed in Loper, supra, that the arguments were improper and of the type that ordinarily is incurable by admonition from the Bench. Notwithstanding, it was concluded from an examination of the whole record that the jury would in all probability have rendered the same verdict, whatever the nature of the jury argument.

In Cross v. Houston Belt & Terminal Railway Co., 351 S.W.2d 84 (Tex.Civ.App. 1961, writ ref’d n. r. e.), it was charged in jury argument that the party suing for personal injuries allegedly sustained by him while engaged in work “placed himself in the hands of these attorneys who had every reason in the world from their financial interest in this case to do everything that they can to hoodwink this Jury from the time that they went shopping for doctors and they have been trying to put in twisted evidence . . . .” Upon objection to the argument the Court said, “Counsel I think you can draw emphasis from the testimony.” The initial counsel thereupon continued the argument by charging that “ . . . [Wjhen he hired these attorneys it was just a question of manufacturing testimony, and they went out and hire any witnesses they can get to say things that you have heard from this witness stand here . . . .” The Court of Civil Appeals found nothing in the record to justify the argument and it was ruled improper, inflammatory and prejudicial in imputing perjury to the witnesses and subornation of perjury to counsel; and, further, that the argument was incurable and in the light of the jury finding could scarcely have done other than result in harm. We did not disturb this writing in acting on the Application for Writ of Error. See also Southern Pacific Company v. Hubbard, 156 Tex. 525, 297 S.W.2d 120 (1956); Texas Employers’ Insurance Assoc. v. Butler, 287 S.W.2d 198 (Tex.Civ.App.1956, writ ref’d n. r. e.); Stephens v. Smith, 208 S.W.2d 689 (Tex.Civ.App.1948, writ ref’d n. r. e.).

It is apparent to me that the arguments here in question probably resulted in an improper verdict; and that the self-serving dissertation of the majority on the harmless error rule is pointless. Reese received an injury while at work on or about March 14, 1975. Reese and his wife testified that this did in fact occur; but there is also evidence upon the basis of which a contrary finding could have been made. The finding by the jury of the fact of injury rested principally, if not entirely, upon the testimony of Reese and his wife, both of whom the jury obviously believed as to this. The jury further found, however, that the injury was the producing cause of total incapacity for the brief period from March 14, 1975 to June 10, 1975; and that the injury was not a producing cause of any partial incapacity. The testimony of Reese and his wife was to the effect that the incapacity suffered by Reese as a result of the injury had not lessened; and that his symptoms of pain and inability to engage in work affecting his back had not abated. The medical witness on behalf of Reese was asked the question, “Doctor, I am going to ask you if you can, based on reasonable medical probability, to give an opinion as to a percentage of disability in your opinion that Mr. Reese is suffering from which would be in most reasonable medical probability a projection of his current and future disability.” The answer to this question was, “I think based on that question and based on the type of work that he was doing prior to his injury I would say that he has lost, or he is not able to do approximately sixty percent of the work that he was able to do before this.” There was no other medical witness. Notwithstanding the testimony of' Reese and his wife, and of their medical witness, the jury in its verdict said that the incapacity of Reese continued only for a period of approximately three months, and that he had not suffered any partial incapacity thereafter. There was no testimony addressing a specific period of time of total incapacity, and there is no explanation of why the jury believed Reese and his wife as to the fact of injury, but did not believe them, or their doctor, as to the duration of the resulting incapacity.

Also, as previously noted, the jury found that Reese had expended or incurred the sum of $1,239 as reasonably required medical care. This was notwithstanding the proof that the charges incurred for physical therapy were in the sum of $1,458 and the charges incurred as doctors’ fees were in the sum of $255, or for a total of $1,713. There is no direct evidence in the record challenging these medical charges and it is reasonable to conclude that the jury was probably influenced in the reduction of $474 by the accusation in the jury arguments that there was a “sham or a plot” to “build those medical bills up real high. The higher the medical bills, obviously he has got to be hurt if he has got all of those medical bills. It will look good in front of a jury.”

I would affirm the judgment of the Court of Civil Appeals.

SAM D. JOHNSON, J., joins in this dissent.

      . “Those thousand decencies that daily flow from all her words and actions.” John Milton, Paradise Lost

      “Thousands at his bidding speed,
      And post o’er land and ocean without rest;
      They also serve who only stand and wait.” Milton, On the Late Massacre in Piedmont.

      “But thousands die without or this or that
      Die, and endow a college or a cat.” Alexander Pope, Moral Essays, Epistle III.

      “Man’s inhumanity to man
      Makes countless thousands mourn.” Robert Bums, Man Was Made to Mourn.

      “And homeless near a thousand homes I stood,
      And near a thousand tables pined and wanted food.” William Wordsworth, Guilt and Sorrow.

      “Strange that a harp of thousand strings
      Should keep in tune so long!” Isaac Watts, Hymns and Spiritual Songs.

      “The lamps shown o’er fair women and brave men.
      A thousand hearts beat happily.” Lord Byron, Childe Harold’s Pilgrimage.

      “He left a corsair’s name to other times,
      Link’d with one virtue, and a thousand crimes.” Lord Byron, The Corsair.

      “But in vayne shee did conjure him
      To depart her presence soe;
      Having a thousand tongues to allure him,
      And but one to bid him goe.” Thomas Percy, King John and The Abbot of Canterbury.

      “If winged thoughts that flit to thee — a thousand in an hour.” John Moultrie, Forget Thee.

      “Earth with her thousand voices, praises God.” Samuel Taylor Coleridge, Hymn in the Vale of Chamouni.

      “Ring out old shapes of foul disease,
      Ring out the narrowing lust of gold;
      Ring out the thousand wars of old,

        Ring in the thousand years of peace.” Alfred Lord Tennyson, In Memoriam.

      “There are a thousand hacking at the branches of evil to one who is striking at the root.” Henry David Thoreau, Walden.

      “Hundreds of people can talk for one who can think, but thousands can think for one who can see.” John Ruskin, Modem Painters.

      “The lowliest men would sooner face
      A thousand dreadful deaths, than come
      Before their loved ones in disgrace.” John Davidson, A Ballad of a Coward.

      “One man in a thousand, Solomon says,
      Will stick more close than a brother.” Rudyard Kipling, The Thousandth Man.

      “For every beast of the forest is mine, and the cattle upon a thousand hills.” Psalms 50:10.
      Ed McMahon to Kamack, the Mystic from the East, April 4, 1979, “A thousand welcomes to you.” Tonight Show, NBC.
      Sadat on April 5, 1979, “Any act of terrorism against Egypt will be repaid one thousand fold.”

      . Mr. Justice Calvert in The Development of the Doctrine of Harmless Error in Texas, 31 Texas L.Rev. 1 (1952), traces this vascillating history. Prior to 1835, the orthodox rule of harmless error prevailed in England. In that year Crease v. Barrett, 1 Cr. M. & R. 919, 149 Eng.Rep. 1353 (1835), reverted to the presumed harm rule. The “heresy,” so-called by Wig-more, continued until the rule of harmless error was restored by rule of court. 1 Wigmore, Evidence 367 (3d ed. 1940). By 1864, Texas had fallen into the practice of presuming harm because of an error. Bailey v. Mills, 27 Tex. 434, 438 (1864); see also Lee v. Hamilton, 12 Tex. 413, 419 (1854). It was not until 1912 that the supreme court by its Rule 62a, 149 S.W. x (1912), returned the standard for review to that of harmless error. But Rule 62a was promptly disregarded less than two years later, Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138 (1914), and presumed harm tenaciously regained its former stature. San Antonio v. McKenzie Construction Co., 136 Tex. 315, 150 S.W.2d 989 (1941); Traders & General Ins. Co. v. Lincecum, 130 Tex. 220, 107 S.W.2d 585 (1937); Chapin v. Putnam Supply Co., 124 Tex. 247, 76 S.W.2d 469 (1934); International Travelers’ Ass'n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040 (1931); Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822 (1923); Eastern Texas Electric Co. v. Baker, 254 S.W. 933 (Tex.Comm’n App.1923). The disregard for Rule 62a resulted in mounting criticism. See Alexander, Proceedings of Association of Appellate Judges, 10 Texas L.Rev. 188, 189 (1932); McKnight, Suggestion for Improving Court Procedure in Texas, 6 Texas L.Rev. 59, 76 (1927); Report of Texas Civil Judicial Council, 11 Texas L.Rev. 204, 206 (1933); State Bar of Texas, The New Laws and Rules Upon Procedure, 9 Texas L.Rev. 538, 548 (1931); Stayton, The Scope and Function of Pleading Under the New Federal and Texas Rules: A Comparison, 20 Texas L.Rev. 16, 27-29 (1941); Comment, Appeal and Error — Application of Rule 62a Since Golden v. Odiorne, 13 Texas L.Rev. 338, 346 (1934). For a full discussion see Calvert, The Development of the Doctrine of Harmless Error in Texas, supra at 5-8.


source: Caselaw Access Project

author: STEAKLEY, Justice. CAMPBELL, Justice,

license: Public Domain

text:
    Robert A. TURNER, Petitioner, v. GENERAL MOTORS CORPORATION et al., Respondents.
    No. B-7747.
    Supreme Court of Texas.
    June 13, 1979.
    Rehearing Denied July 18, 1979.

      Thomas M. Reavley, Austin, Krist, Gunn, Weller & Neumann, Ronald D. Krist and Harvill E. Weller, Jr., Houston, for petitioner.
    Vinson & Elkins, Raybourne Thompson, Jr. and Jack C. Nickens, McAninch, Cop-pock & Teltschik, Pulbright & Jaworski, James B. Sales and Robert A. Machines, Houston, for respondents.
   ON MOTIONS FOR REHEARING

STEAKLEY, Justice.

The opinion of the Court delivered March 21, 1979, and the judgment based thereon, are withdrawn. The following is now the opinion of the Court.

Robert A. Turner overturned his 1969 Chevrolet Impala sedan, manufactured and sold by General Motors Corporation, while seeking to avoid a collision with a truck. The car rolled over once and the roof caved in at the driver’s corner when it contacted the ground. Although his seat belt was buckled, Turner was struck on his head and suffered a crushed vertebra resulting in paralysis. It is not contended that the design of the automobile or the roof had any part in causing the accident.

Turner sued General Motors and the dealer, Kliesing Motor Company, in a products liability action on a strict tort liability theory, alleging the uncrashworthiness of the automobile. General Motors did not inter-plead the driver or owner of the truck. In a venue appeal it was ruled that under this doctrine a manufacturer and retailer may be held strictly liable in tort for a defectively designed automobile which enhances the injuries of the plaintiff but does not cause the accident. Turner v. General Motors Corp., 514 S.W.2d 497 (Tex.Civ.App.1974, writ ref’d n. r. e.).

Upon the subsequent trial of the merits of Turner’s action now before us the jury answered the following issue in the affirmative:

SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that at the time the automobile in question was manufactured by General Motors the roof structure was defectively designed?
By the term “defectively designed” as used in this issue is meant a design that is unreasonably dangerous.
“Unreasonably dangerous” means dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.

The jury similarly answered the producing cause issue and in response to the issue on damages assessed the sum of $1,140,000.

The trial court judgment for Turner was reversed by the Court of Civil Appeals and the cause remanded. 567 S.W.2d 812. After stating that the definition of “unreasonably dangerous” given the jury by the trial court was in substantially the same language used in General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex.1977), the Court of Civil Appeals ruled that this was not proper in a crashworthiness case and that the jury should be instructed to balance specific factors in determining whether or not the design causing the injury was defective:

We are of the opinion that the following factors should be balanced, as directed by Turner, in making the determination of whether the design is or is not defective: (1) the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use; (2) the availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive; (3) the manufacturer’s ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs; (4) the user’s anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.

567 S.W.2d at 818.

The court also ruled that the trial court erred in excluding evidence that an industry practice or standard for roof strength, offered by General Motors and admitted into evidence, was subsequently embodied in Federal Motor Vehicle Safety Standard No. 216. The standard was promulgated in December, 1971, by the National Highway Traffic Safety Administration and became effective on September 1, 1973. The car in question was purchased in 1969 and the accident occurred in April, 1971.

Turner applied for and was granted writ of error to review these rulings of the intermediate court. General Motors in its reply asserted (a) that the trial court also erred in its definition of unreasonably dangerous by not requiring that consumer expectations be reasonable, and in refusing the alternate prudent manufacturer standard; (b) that a balancing factor instruction in specific respects required by the Court of Civil Appeals is essential in a conscious design crashworthiness case, as here, in distinction to cases where the defect is alleged to have caused the accident as well as the resulting injury; and (c) that the only authoritative standard for roof strength was the one subsequently adopted by the federal government and the jury was entitled to know both the standard itself, and its source.

General Motors and Kliesing Motor Company filed conditional applications for writ which were also granted. Certain of their points will be summarized because of their relevance to the discussion and rulings immediately to follow; others will be noted thereafter. It is argued that conscious design cases should be more properly conceived as negligence or engineering malpractice cases with the existence of a defective design dependent upon the reasonableness of the manufacturer’s action and the due care that was exercised; the fact finders should bo required to evaluate the conduct of the manufacturer and not to evaluate the product itself; and that conscious design cases in crashworthiness contexts are different in principle from all other conscious design cases where the alleged defect caused the accident.

We will reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court. In doing so we reaffirm the application of the principles of strict liability to suits based on conscious design defects in products entering the channels of commerce. We further hold:

1.The rules of strict liability govern in cases where the defect caused the accident and the resulting injuries, and in crashwor-thiness cases where the defect is the cause of injuries only. Evidence upon the factors of risk and utility such as those enumerated by the Court of Civil Appeals, as well as upon the expectations of the ordinary consumer, may be admissible in the trial of such cases. As to this, however, we disapprove the holding of the Court of Civil Appeals that the jury is to be instructed to balance specifically enumerated factors, whether those listed by the Court of Civil Appeals, or otherwise.

2. The definition of “unreasonably dangerous” given by the trial court is consistent with our previous writings in Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974) and General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex.1977). See also Signal Oil & Gas Co. v. Universal Oil Products, 572 S.W.2d 320 (Tex.1978); Gonzales v. Caterpillar Tractor Co., 571 S.W.2d 867 (Tex. 1978); Miller v. Bock Laundry Machine Co., 568 S.W.2d 648 (Tex.1977); and Rourke v. Garza, 530 S.W.2d 794 (Tex.1975).

3. Upon re-examination of these previous writings we have determined that henceforth in the trial of strict liability cases involving design defects the issue and accompanying instruction will not include either the element of the ordinary consumer or of the prudent manufacturer; to the extent of any conflict in such respects, Headers on and Hopkins are overruled. The jury may be instructed in general terms to consider the utility of the product and the risks involved in its use.

The Crashworthiness Doctrine

The concept of defect is central to a products liability action brought on a strict tort liability theory, whether the defect be in conscious design, or in the manufacture of the product, or in the marketing of the product. See, Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974); Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex.1969); McKisson v, Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967).

Citing McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967), we wrote in Pittsburg Coca-Cola Bottling Works of Pittsburg v. Ponder, 443 S.W.2d 546 (Tex. 1969), of our final yield to the irrefutable logic that the rule of strict liability is the only practical vehicle for protecting the public against harm caused by defective products. We recognized that McKisson committed the Court to the rule of strict liability expressed in Section 402A of The American Law Institute’s Restatement of the Law of Torts (2d Ed.). We wrote further:

The prime requirement for imposing liability on a seller under the rule of strict liability is proof by the plaintiff that he was injured because of a defective condition in the product when it left the hands of the particular seller. Jack Roach-Bissonet, Inc. v. Puskar, 417 S.W.2d 262, at 278 (Tex.1967). This is not to say that proof of the defect must be made by direct or opinion evidence; it usually can only be made by circumstantial evidence. As an example, see Darryl v. Ford Motor Co., [440 S.W.2d 630 (Tex. 1969)].

443 S.W.2d at 548.

Later, in Henderson v. Ford Motor Co., 519 S.W.2d 87, at 92, we wrote:

The car manufacturer and its dealer are liable for unreasonably dangerous products — whether designed defectively or improperly and produced as designed, or whether designed perfectly but improperly or defectively produced.

A logical extension of the rationale of these decisions is succinctly stated in Huff v. White Motor Corp., 565 F.2d 104, 109 (7th Cir. 1977):

One who is injured as a result of a mechanical defect in a motor vehicle should be protected under the doctrine of strict liability even though the defect was not the cause of the collision which precipitated the injury. There is no rational basis for limiting the manufacturer’s liability to those instances where a structural defect has caused the collision and resulting injury. This is so because even if a collision is not caused by a structural defect, a collision may precipitate the malfunction of a defective part and cause injury. In that circumstance the collision, the defect, and the injury are interdependent and should be viewed as a combined event. Such an event is the foreseeable risk that a manufacturer should assume.

In each case, i. e., where the product causes the accident and resulting injuries and where the product causes damage or injury only, the causative defect is one of conscious design and there is no valid distinction in strict liability between a conscious design defect causing an accident and a conscious design defect causing an injury. By the same token, there is no rational basis for a difference in the manner of submission of the issues to be determined by the fact finder. We have not required a balancing of enumerated factors in jury submission by our previous writings, and, as stated earlier, we disapprove the ruling of the Court of Civil Appeals that such is required in a crashworthiness case.

The difficulty of formulating a series of specific factors which the fact finders will be instructed to balance is obvious. The majority of the Court of Civil Appeals enumerated four factors it would require to be balanced in determining the fact issue of defective design; the dissenting justice would require a fifth factor. These suggested factors were apparently derived from two cited law review articles: that of Dean Wade, Strict Tort Liability of Manufacturers, 19 Sw.L.J. 5,17 (1965) suggesting seven factors; and that of Dean Keeton, Manufacturer’s Liability: The Meaning of “Defect” in the Manufacture and Design of Products, 20 Syracuse L.Rev. 559, 565 (1969), suggesting four factors. Dean Wade, in a later article, On the Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825, 838, 840 (1973), offered a revised list of seven factors which seemed to him to be of significance in applying the unreasonably dangerous standard. He posed the question of how the proposed standards are actually to be used in the trial of a case and wrote that “It is here [unsafe design] that the policy issues become very important, and the factors which were enumerated above must be collected and carefully weighed. It is here that the court — whether trial or appellate — does consider these issues in deciding whether to submit the case to the jury. . . . Should the jury be told about the list of seven factors which were set forth above? The answer should normally be ‘no.’ ” His conclusion is that the analysis is most helpful and can be used by appellate and trial judges, and by students and commentators, but that it is not normally given to the jury. Many other commentators have suggested factors to be utilized. See, Dickerson, Products Liability: How Good Does A Product Have To Be?, 42 Ind.L.J. 301, 331 (1967) (five factors); Fischer, Products Liability — The Meaning of Defect, 39 Mo.L.Rev. 339, 359 (1974) (fifteen factors); Montgomery & Owen, Reflections On The Theory And Administration of Strict Tort Liability For Defective Products, 27 S.C.L.Rev. 803, 818 (1976) (four factors); Shapo, A Representational Theory of Consumer Protection: Doctrine, Function and Legal Liability for Product Disappointment, 60 Va.L.Rev. 1109, 1370 — 71 (1974) (thirteen factors).

In speaking to the question of whether there was evidence to support the jury finding that the product was unreasonably dangerous, we wrote in Rourke v. Garza, 530 S.W.2d 794, 799 (Tex.1975): “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.” There was no suggestion in Rourke, however, that the jury should have been instructed to balance specific factors of risk of harm against utility-

It has been pointed out that the evidence necessary to address the appropriate elements of balancing criteria should be overtly advanced by both parties in a strict liability action; but that this does not necessarily lead to the conclusion that the jury should be specifically instructed concerning these considerations. See, Donaher, Piehler, Twerski and Weinstein, The Technological Expert in Products Liability Litigation, 52 Tex.L.Rev. 1303, 1307-08 (1974). See also, Green, Strict Liability Under Sections 402A and 402B: A Decade of Litigation, 54 Tex.L.Rev. 1185, 1203-06 (1976).

The Charge to the Jury

We turn now to the attack of General Motors and Kliesing on the definition of “unreasonably dangerous” contained in the charge to the jury. As quoted earlier, the trial court defined the term “unreasonably dangerous” as follows:

“Unreasonably dangerous” means dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.

One objection of General Motors to this definition, and its request for a substitute, is recorded in the trial record as follows:

The defendant General Motors likewise objects to the submission of Special Issue No. 1 because it is an incorrect submission of the law pertaining to the design defect which is before the court in Turner vs. General Motors Corporation and Kliesing Motor Company.
The special issue incorrectly defines the term unreasonably dangerous.
At this time the defendant General Motors Corporation would request that the court correctly define unreasonably dangerous to include the following definition: “Unreasonably dangerous means dangerous to the extent that any automobile so designed would not be placed in the channels of commerce by a prudent manufacturer aware of the risks involved in its use or to the extent that the automobile would not meet the reasonable expectations as to safety of the ordinary consumer with the ordinary knowledge common to the community as to its characteristics.”
And at this time, in reference to our objection to Special Issue No. 1 and the definition of unreasonably dangerous the defendant General Motors Corporation would tender its requested special issue, which contains the correct definition of unreasonably dangerous.
This special issue tendered to the court is marked Special Issue No. 1, and is hereby tendered to the court and has been marked refused by his honor.

The writings of this Court in Henderson and Hopkins do not require the disjunctive definition of “unreasonably dangerous” requested by General Motors. The stated concept of Henderson and Hopkins was that the additional perspective of the prudent manufacturer is to the advantage and for the benefit of an injured plaintiff and is available to him if under the facts the defect is apparent, or if it is felt that the fact finders might be diverted by the lack of expectations of the consumer with regard to the details of product design.

The bifurcated test instructs the jury that the product is unreasonably dangerous (1) if the product threatens harm to persons using the automobile to the extent that any automobile so designed would not be placed in the channels of commerce by a prudent manufacturer aware of the risk involved in its use or (2) to the extent that the automobile would not meet the reasonable expectations of the ordinary consumer as to its safety. The use of the alternative test was made clear in Hopkins. The trial court had submitted the Henderson test except for the use of “and” in lieu of “or.” This error was pointed out in a footnote wherein it was said in part:

The use of ‘and’ here emphasized is of no consequence in the present case, but the proper definition would be disjunctive — using ‘or’ rather than ‘and.’

548 S.W.2d 347-348.

Although we have never expressly considered a point of error complaining of the use of only one part of the bifurcated or disjunctive test, we have affirmed, without a suggestion of disapproval, several cases where the trial court gave the jury only the RESTATEMENT (SECOND) OF TORTS § 402A, comment (i) definition of “unreasonably dangerous”:

‘Unreasonably dangerous’ means dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.

See Signal Oil & Gas Co. v. Universal Oil Products, 572 S.W.2d 320 (Tex.1978); Gonzales v. Caterpillar Tractor Co., 571 S.W.2d 867 (Tex.1978); Miller v. Bock Laundry Machine Co., 568 S.W.2d 648 (Tex.1977); General Motors Corp. v. Simmons, 558 S.W.2d 855 (Tex.1977); and Rourke v. Garza, 530 S.W.2d 794 (Tex.1975). This definition was approved by the Court of Civil Appeals in the venue appeal of the case before us now, although the definition was considered in a different context.

In any event, any error in the failure to submit the prudent manufacturer element of the disjunctive test was harmless error. There is no complaint that any evidence offered by General Motors relative to this was excluded. The jury found that the automobile was defectively designed under an instruction incorporating the ordinary consumer test. It was immaterial whether the jury might have also found that the roof structure was defectively designed from the standpoint of the prudent manufacturer test.

General Motors and Kliesing further contend that the definition of “unreasonably dangerous” given by the trial court was erroneous in not requiring that the expectations of the ordinary consumer be reasonable. It is argued that this, too, is required under our writings in Henderson and Hopkins. Again we disagree. The parties do not cite to an authority, and we have found none, requiring, or not, the addition of the reasonable expectation concept to the definition. The Court of Civil Appeals found the charge here in question to be defective in other respects but no point was made of the definition of unreasonably dangerous in terms of the ordinary consumer with the ordinary knowledge common to the community.

The court in General Motors Corp. v. Simmons, 545 S.W.2d 502 (Tex.Civ.App.1976), writ granted on other grounds, 558 S.W.2d 855 (Tex.1977), considered the contention that the court’s definition of unreasonably dangerous should include the element of the reasonable expectations of the ordinary consumer as to the safety of the product. The court pointed out that the definition under attack was taken from the language used in § 402A of the RESTATEMENT (SECOND) OF TORTS, comment (i); and that the court could find no Texas case where this particular objection had been discussed. The court cited the suggestion in Pyatt v. Engel Equipment, Inc., 17 Ill.App.3d 1070, 309 N.E.2d 225 (3rd Dist. 1974), that the comment (i) definition in its reference to ordinary use and ordinary knowledge carried the connotation of the reasonable man standard. See also Mitchell v. Fruehauf Corp., 568 F.2d at 1145, where it was said that the balancing test there urged, i. e., the balancing of risks, utility and costs of the current and alternative design, was simply an expression of the concept of unreasonably dangerous; and, quoting from Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973) (interpreting Texas law) that “unreasonably dangerous” is “a concept that necessarily implies a balancing of a product’s utility against the danger.”

As indicated earlier, we have re-examined the manner in which a conscious design strict liability case is to be hereafter submitted to the jury. In so doing, we have determined that the bifurcated test and the writing as to this in Henderson and Hopkins will no longer govern. We are persuaded to this conclusion by the inclusiveness of the idea that jurors would know what ordinary consumers would expect in the consumption or use of a product, or that jurors would or could apply any standard or test outside that of their own experiences and expectations. See Green, Strict Liability Under Sections 402A and 402B: A Decade of Litigation, 54 Tex.L.Rev. 1185 (1976). The stated reason for the alternative test of the prudent manufacturer does not justify its continued use.

Accordingly, we approve the form of jury submission stated in the forepart of this opinion to be effective in the trial of design defect strict liability cases after the date on which our judgment herein becomes final. The issue and instruction will be in this form when the considerations of utility and risks are present in the state of the evidence, and in such cases should serve as an appropriate aid to the jury in its deliberations. As previously noted, we recognized in Rourke v. Garza, supra, that under the evidence there the jury was justified in concluding that the risks of harm outweighed the utility of the product. And, as stated by the Court in Ross v. Upright, Inc., 402 F.2d 943, 946 (5th Cir.1968), the demand “that the defect render the product unreasonably dangerous reflects a realization that many products . . . have both utility and danger.”

There were evidentiary points urged by General Motors before the Court of Civil Appeals, and here, which were considered by the intermediate court and overruled. Among these were points attacking the legal and factual sufficiency of the evidence to support the answers to Special Issues One and Two that the roof structure was defectively designed which was the producing cause of the injury to Turner; and points attacking the qualifications and testimony of Turner’s expert witnesses. Other points relate to the exclusion of evidence of an out-of-court experiment conducted by General Motors during the trial. We agree with and adopt the writing of the Court of Civil Appeals in overruling these points.

Federal Motor Vehicle Safety Standard No. 216 was promulgated in December of 1971 by the National Highway Traffic Safety Administration and became effective on September 1, 1973, as a minimum standard for all cars subsequently manufactured. It sets forth a strength requirement for passenger car roofs and embodies an existing industry practice. General Motors proved the standard as an industry practice but the trial court excluded proof that the standard had been adopted by agencies of the federal government subsequent to the manufacture and sale of Turner’s Chevrolet Impala and the accident in question. The Court of Civil Appeals found error in the exclusion of this proof; but because of errors also found in the charge to the jury, the court did not have occasion to determine the question required by Rule 503, Texas Rules of Civil Procedure, i. e., whether this error amounted to such a denial of the rights of General Motors as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

As a rule, post-event regulations are inadmissible. See Simms v. Southwest Texas Methodist Hospital, 535 S.W.2d 192 (Tex.Civ.App.1976, writ ref’d n. r. e.) and Bell v. Buddies Super-Market, 516 S.W.2d 447 (Tex.Civ.App.1974, writ ref’d n. r. e.). Apart from this, we have determined from an examination of the record that the exclusion of the subsequent federal standard was not reasonably calculated to cause and probably did not cause the rendition of an improper verdict. See Dennis v. Hulse, 362 S.W.2d 308 (Tex.1962) and Walker v. Texas Employers’ Insurance Assoc., 155 Tex. 617, 291 S.W.2d 298 (1956). It was established by an employee-witness presented by General Motors that the industry practice was a joint effort of the industry and independent laboratories; that the standard was tested both by independent laboratories and by the industry; that automotive manufacturers importing vehicles into the United States do not use any other method of testing; that this is the standard to which vehicles have been built since 1973; and that passenger vehicles sold today in the United States comply with the practice.

The last witness in the trial presented by General Motors was questioned about a clinical paper he prepared on rollover accidents published in 1972 but relating back to collisions that he had studied for the preceding five years. On cross-examination, the witness testified:

Q. Now, you tell me that you recognize the Society of Automobile Engineers as authoritative?
A. I am not sure just what you mean by authoritative, certainly as the years have gone by, have been — it is an independent group of men and women worldwide who are devoted to all kinds of automotive interests, as far as being the authority, I am not sure that it’s so, but they are the depositories as a group of people. We work together to make changes.
Q. Well, would you feel that they would be authoritative on the function of vertical restraint in regards to a se-atbelt, a lap belt, in the event a car overturns concerning what belts are supposed to do?
A. There is certainly a standard. I am sure in that area, but I can’t quote it to you, but whether it is an authority today, the Federal Government has the authority to set standards for vehicles — for vehicle design.
Q. Do you recognize the Society of Automotive Engineers as authoritative or not, Mr. Siegel?
A. Well, they are not the authority. The authority is the Federal Government in automotive design.

The foregoing illustrates the extent to which it was shown to the jury that the industry practice proved by General Motors was of industry-wide acceptance and observance, with the inference that it was regarded as authoritative. The case was tried over a period of approximately two weeks and the evidence was developed at great length by competent and expert counsel for the parties. We do not believe it reasonable to conclude that the verdict of the jury would have been different had proof been allowed of the additional fact that the industry-wide practice had been subsequently adopted by federal agencies as a standard for automobile roof strength.

Finally, General Motors requested a special instruction to the jury to the effect that an award of damages to Turner would not be subject to federal income taxation. This was refused by the trial court. As pointed out in the majority opinion of the Court of Civil Appeals, it was heretofore ruled in Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 945 (1956), that such an instruction would be improper as introducing a wholly collateral matter into the damage issue. We reaffirm McFerrin as stating the correct rule.

The Motion for Rehearing filed on behalf of Robert A. Turner is granted. The Motion for Rehearing filed on behalf of General Motors Corporation is overruled. The opinion of the Court delivered March 21, 1979 and the judgment based thereon are withdrawn and set aside. The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

Concurring opinion by CAMPBELL, J., joined by SAM D. JOHNSON, J.

CAMPBELL, Justice,

concurring.

I concur in the result, but the future consequences of certain expressions and pronouncements in the majority opinion compel me to express my dissent.

General Motors’ contention that the trial court erred in failing to include in its definition of unreasonably dangerous both alternatives of the so-called bifurcated definition should be unequivocally rejected by a simple declaration of the obvious, unassailable principle that when a finding of either of two alternatives supports a ground of recovery or defense, the party asserting such ground of recovery or defense has the unquestionable right to waive a finding of either of the alternatives and rely solely on the other. To intimate possible error in this regard by resort to the harmless error rule can only result in confusion of the bar and bench.

In overruling this Court’s prior decisions by discarding the Restatement’s definition of unreasonably dangerous, the majority opinion fails to give due cognizance to the underlying policy and purpose of strict liability in tort, merges strict liability into negligence liability, and for all practical purposes abolishes strict liability in tort as to defective design. Liability for negligence is imposed for violation of a legal duty to exercise the care of an ordinary prudent person under the same or similar circumstances. Strict liability in tort of a manufacturer who places a defective product in the stream of commerce is imposed, not for violation of a duty to exercise due care, but because public policy favors imposition of the burden of a defective product upon the manufacturer instead of the consumer. The public interest in human safety requires the maximum possible protection for the user of the product; the manufacturer is in a better position to know the potential dangers in the product and test for and guard against same while the consumer generally must and does rely on the manufacturer’s skill, knowledge and warnings of unexpected dangers; and, generally the manufacturer is in a better position to bear the loss from a faultless but dangerous product than is the consumer. James, General Products — Should Manufacturers Be Liable Without Negligence?, 24 Tenn.L.Rev. 923 (1957); Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L.Rev. 791 (1966); Keeton, Products Liability — Some Observations About Allocation of Risks, 64 Mich.L.-Rev. 1329 (1966). This Court recognized the distinction between the theories of negligence and strict liability by stating in Gonzales v. Caterpillar Tractor Co., 571 S.W.2d 867, 871 (Tex.1978):

“ . . . The care taken by the supplier of a product in its preparation, manufacture, or sale, is not a consideration in strict liability; this is, however, the ultimate question in a negligence action. Strict liability looks at the product itself and determines if it is defective. Negligence looks at the acts of the manufacturer and determines if it exercised ordinary care in design and production.”

The Restatement’s definition also recognizes this distinction by focusing solely on the contemplation of danger by the consumer without any implication of the manufacturer’s contemplation or considerations. Apart from causation, the only finding necessary for strict liability under the Restatement is that the product was dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. The Restatement (Second) of Torts § 402A. This simply means, that by reason of the manufacturer’s superior knowledge of a product’s characteristics, if a danger beyond the contemplation of the ordinary consumer exists, the manufacturer must alter the product or warn the user to the extent necessary to bring such danger within his contemplation. When a jury is merely asked if a product, its condition or design is unreasonably dangerous, without the above definition, the question can only be interpreted by a jury to mean “more dangerous than it would have been had the manufacturer acted as a prudent manufacturer.” Such is even more conclusive when specific negligence issues are also submitted because reasonable care is defined as “the care which a person of ordinary prudence would use under like circumstances.” Edmiston v. Texas & N. O. R. Co., 135 Tex. 67, 138 S.W.2d 526 (1940). This is made even more obvious by the majority’s instruction, that is a part of the definition, “taking into consideration the utility of the product and the risk involved in its use.” Utility, risk, economics, etc., are mere evidence on the issue of a manufacturer’s negligence in marketing the product or failing to remove or lessen the danger therein, and to instruct the jury to consider such evidentiary factors compels the jury to determine the issue solely on fault or non-fault of the manufacturer. Furthermore, such instruction by implied exclusion limits the jury’s evidentia-ry consideration solely to utility and risk and by reason of the clause “Do you find from a preponderance of the evidence” the jury will usually decide the case on whether utility outweighs the risk. Though a product bears a danger that could be removed for a few pennies, its use would generally outweigh the risk.

I would not merge strict liability of a manufacturer into a mere negligence issue but would maintain the distinction between these two separate theories of liability as has the Restatement and our prior decisions in McKisson v. Sales Affiliates, 416 S.W.2d 787 (Tex.1967); Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969); Pittsburg Coca Cola v. Ponder, 443 S.W.2d 546 (Tex.1969); Crocker v. Winthrop Lab., 514 S.W.2d 429 (Tex.1974); General Motors v. Simmons, 558 S.W.2d 855 (Tex.1977); Miller v. Bock Laundry, 568 S.W.2d 648 (Tex.1978); Armstrong Rubber v. Urquidez, 570 S.W.2d 374 (Tex.1978); Gonzales v. Caterpillar Tractor Co., 571 S.W.2d 867 (Tex. 1978); Signal Oil & Gas v. Universal Oil Products, 572 S.W.2d 320 (Tex.1978). In my opinion no satisfactory reasons have been advanced to support our departure from these decisions.

The bifurcated definition of unreasonably dangerous pronounced by this Court in General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex.1977), improperly permits the jury to find negligence or strict liability in one disjunctive question and I agree with the majority that such definition should be expressly overruled.

Lastly, the majority opinion states its new form of jury submission to be hereafter effective in the trial of design defect strict liability cases but does not state whether the new method of submission shall apply or not apply to other factual situations within the former ambit of strict liability in tort. Such ambiguity will place practitioners and jurists in a state of limbo in the trial of all strict liability cases having alleged defects in addition to or other than those of design. The form of submission given by the trial court in this case, in exact conformity to that of The Restatement (Second) of Torts § 402A, was authored to cover and does in fact cover every factual situation within the purview of strict liability in tort and should be declared by this Court to be the proper submission in Texas.

For the above reasons, I dissent from the respected views of the majority as to the stated particulars.

SAM D. JOHNSON, J., joins in this concurring opinion.

      . SPECIAL ISSUE NO. 1
      Do you find from a preponderance of the evidence that at the time the [product] in question was manufactured by [the manufacturer] the [product] was defectively designed?
      By the term “defectively designed” as used in this issue is meant a product that is unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use.
      Answer: “We do” or “We do not.”

      . There is much literature upon the question of actionable defect. See RESTATEMENT (SECOND) OF TORTS § 402A (1965); Products Liability: How Good Does A Product Have to Be?, 42 Ind.L.J. 301 (1967); Fischer, Products Liability — The Meaning of Defect, 39 Mo.L. Rev. 339 (1974); Keeton, Manufacturer’s Liability: The Meaning of "Defect” In The Manufacture And Design of Products, 20 Syracuse L.Rev. 559 (1969); Keeton, Product Liability And The Meaning of Defect, 5 St. Mary’s L.J. 30 (1973); Keeton, Products Liability — Liability Without Fault And The Requirement of A De-feet, 41 Tex.L.Rev. 855 (1963); Montgomery & Owen, Reflections on The Theory and Administration of Strict Tort Liability for Defective Products, 27 S.C.L.Rev. 803 (1976); Sales & Perdue, The Law of Strict Tort Liability in Texas, 14 Hous.L.Rev. 1 (1976-77); Traynor, The Ways and Meanings of Defective Products and Strict Liability, 32 Tenn.L.Rev. 363 (1965); Wade, On The Nature of Strict Tort Liability For Products, 44 Miss.L.J. 825 (1973); L. Frumer & M. Friedman, 2 Products Liability, § 16A (1970).


author: POPE, Justice.

text:
    EMPIRE LIFE INSURANCE COMPANY OF AMERICA et al., Petitioners, v. Shearn MOODY, Jr., Respondent.
    No. B-8027.
    Supreme Court of Texas.
    July 18, 1979.

      McGinnis, Lochridge & Kilgore, Shannon H. Ratliff, Austin, for petitioners.
    Newman, Shook & Newman, Frank Newman, Dallas, Frederick J. Lawson, Sherman Oaks, Cal., Reynolds, Allen & Cook, Joe H. Reynolds, Houston, for respondent.
   POPE, Justice.

Two questions are presented by this appeal. The first one is whether there is a justiciable controversy which can be decided under the Uniform Declaratory Judgments Act, Tex.Rev.Civ.Stat.Ann. art. 2524 — 1; the second one is whether an assignment by the owner of and beneficiary under life insurance policies was valid. After a trial to the court on stipulated facts, the trial court rendered a declaratory judgment that the assignment was valid, but the court of civil appeals dismissed the cause for want of jurisdiction, on the grounds that there was not a justiciable controversy. 570 S.W.2d 450. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

On June 27, 1963, Empire Life Insurance Company of America was incorporated and licensed to do business in the State of Alabama. From that time until June 22, 1972, Shearn Moody, Jr., was the principal stockholder, chief executive officer, president, and chairman of the board of Empire. Moody owned an undivided one-eighth life estate in the income from a trust created by the will of Libbie Shearn Moody, and on July 3,1963, he assigned to Empire full and complete title to forty percent of his undivided one-eighth life estate.

Under accounting principles, Empire could not carry its forty percent interest in the Libbie Shearn Moody trust as an asset of the company except to the extent that its value was covered by insurance on the life of Mr. Moody, the life income beneficiary. This was so, because the income would necessarily terminate upon his death which could occur at any time. Mr. Moody, for the purpose of making his trust an asset of Empire, applied for and obtained life insurance policies on his life with three different companies. Those companies were Empire State Life Insurance Company, National Western Life Insurance Company, and North America Life Insurance Company. Moody designated Empire Life Insurance Company of America as the owner and beneficiary of the policies which had a total coverage of $12,000,000. After Empire became the beneficiary of the policies, it carried the Moody life estate interest as an asset at values that ranged from $14,213,-440 in 1965 to $4,250,000 in 1975.

In 1972, Empire was experiencing serious financial difficulties and was placed in receivership by the Circuit Court for the Tenth Judicial Circuit of Alabama. At the time of the receivership hearing, Empire was insolvent in excess of $6,000,000. The Commissioner of Insurance of Alabama was appointed domiciliary receiver. Because of the assets located in Texas, an ancillary receivership was also instituted. After the domiciliary receiver determined that full rehabilitation of Empire was not feasible, he solicited proposals for assumption of the outstanding insurance policies of Empire.

Subsequently, an agreement was reached with Protective Life Insurance Company of Birmingham, Alabama. Its reinsurance plan was found to offer the best protection to the policy holders and other creditors of Empire. The agreement, entitled “Treaty of Assumption and Bulk Reinsurance,” among other provisions, required Empire to transfer to Protective all of Empire’s assets except Two Million Dollars ($2,000,000) which was to be used to pay the expenses of the receivership and to satisfy creditors for liabilities not assumed by Protective. The assignment of the Moody trust asset to Protective was upheld in Moody v. Moody National Bank of Galveston, 522 S.W.2d 710 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n. r. e.). Empire also agreed to assign to Protective $4,350,000 of the proceeds from the life insurance policies. The receiver for Empire under its agreement with Protective would remain as the owner and beneficiary of the policies. At the time of the Treaty, the Moody trust interest owned by Empire was valued at $4,250,000, and it was the largest asset that Empire transferred to Protective.

Shearn Moody, Jr., instituted this suit in the nature of a declaratory judgment action. He named as defendants to his action the Empire Life Insurance Company of America, Protective Life Insurance Company, and the three insurers of his life. He asked for a declaratory judgment that would declare void Empire’s assignment of the proceeds from the life insurance policies to Protective because Protective did not have an insurable interest in his life. Empire and Protective counterclaimed for declaratory relief that the receiver has a present insurable interest in the life of Moody, that the receiver has the power to assign to Protective his right to receive $4,350,000 of the insurance proceeds and that Protective has a present insurable interest.

The trial court sustained Empire’s and Protective’s claims and rendered judgment declaring that:

1. Herbert Crook, Ancillary Receiver of Empire Life Insurance Company of America, as statutory successor to Empire Life Insurance Company of • America, has, and at all time pertinent to this suit had, a present insurable interest in the life of Shearn Moody, Jr., for the full amount of the life insurance policies on the life of Shearn Moody, Jr., in which Empire Life Insurance Company of America is the beneficiary, to-wit: Twelve Million Dollars ($12,000,00);
2. That the right to receive the proceeds from such policies upon the death of the insured is presently assignable by Herbert Crook, Ancillary Receiver, acting by and for the named beneficiary Empire Life Insurance Company of America, in an amount equal to Four Million Three Hundred Fifty Thousand Dollars ($4,350,000), and that he may assign additional amounts equal to any greater value assigned by the Alabama Insurance Department to the life estate heretofore transferred to Protective under the Treaty of Bulk Reinsurance, heretofore approved by this Court;
3. That neither Empire State Life Insurance Company, National Western Life Insurance Company or North America Life Insurance, nor any of them, have any defense to payment of such policies based upon any claim of a lack of insurable interest in Protective Life Insurance Company of Birmingham, Alabama, from and after the assignment of proceeds as de-dared valid in the preceding paragraph;
4. That Protective Life Insurance Company has an insurable interest in the life of Shearn Moody, Jr., for so long as it has title to the life estate interest of Shearn Moody, Jr., transferred to it under the Treaty of Bulk Reinsurance, and that such present insurable interest is equal to Four Million Three Hundred Fifty Thousand Dollars ($4,350,000); and
5. That Protective Life Insurance Company’s insurable interest declared above shall increase in the event the life estate interest of Shearn Moody, Jr., is revalued by the Alabama Insurance Department at a greater amount than Four Million Three Hundred Fifty Thousand Dollars ($4,350,000).

There Is a Justiciable Controversy

The court of civil appeals viewed the issues in this case as hypothetical and contingent ones and, acting on its own motion, reversed the judgment of the trial court and ordered a dismissal of the cause for want of jurisdiction. This judgment was made in error.

In Firemen’s Ins. Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex. 1969), this court reiterated the long standing rule that the judicial power does not embrace the giving of advisory opinions. California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960); Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933). A judgment under the Uniform Declaratory Judgments Act depends on a finding that the issues are not hypothetical or contingent, and the questions presented must resolve an actual controversy, although such questions may in the future require adjudication.

There is an actual, live, and genuine controversy in this instance, and all of the parties to this appeal so contend. Protective’s ownership of the forty percent of Shearn Moody, Jr.’s life estate in one-eighth of the Libbie Shearn Moody trust income is not in question. Moody v. Moody National Bank of Galveston, supra. There is, however, a very present controversy whether Protective’s ownership of that part of the Libbie Shearn Moody trust may be carried as an asset worth $4,250,000, as Protective urges or as an asset of uncertain or no value. When Mr. Moody instituted this suit seeking a declaration that Protective had no insurable interest in his life, the validity of Protective’s right to a portion of the proceeds in the three life policies was drawn in question. The solution of that issue has significant legal and financial consequences. The validity of Protective’s reinsurance package affects the financial strength and soundness of Protective in the event the Shearn Moody, Jr., asset is disallowed because there is no valid insurance on his life. The ability of Protective to service Empire’s policy holders’ contracts which it agreed to do, is also brought in question. The financial strength to satisfy policy commitments, such as the satisfaction of cash surrender values, fulfillment of loan provisions of policy holders, and the payment of insurance benefits are presently affected by Protective’s possible loss of $4,250,000 as an asset. See Moody v. State, 539 S.W.2d 354 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.). We view the issue of whether Empire’s receiver has the authority to assign a portion of its right to receive proceeds to Protective to present a justiciable controversy under the Uniform Declaratory Judgments Act. See Salvato v. Volunteer State Life Ins. Co., 424 S.W.2d 1 (Tex.Civ.App.—Houston 1968, no writ); Great American Ins. Co. v. Sharpstown State Bank, 422 S.W.2d 787 (Tex.Civ.App.—Austin 1967, writ dism’d); Ainsworth v. Oil City Brass Works, 271 S.W.2d 754 (Tex.Civ.App.—Beaumont 1954, no writ).

Protective Has An Insurable Interest in Shearn Moody, Jr.

Protective now owns, by assignment from Empire, Shearn Moody, Jr.’s life estate interest in the Moody trust. That interest was the major asset of Empire and from that asset substantial sums of money have been paid to Empire or its receiver. The income from the trust will now be paid to Protective as long as Moody continues to live, but upon his death, the income from the trust will cease. Under the rule stated in Drane v. Jefferson Standard Life Ins. Co., 139 Tex. 101, 161 S.W.2d 1057 (1942), Protective has a present insurable interest in the life of Moody to the extent of the asset value which the Alabama court approved as $4,250,000. Moody v. State ex rel. Payne, 344 So.2d 160 (Ala.1977), cert. denied, 434 U.S. 996, 98 S.Ct. 634, 54 L.Ed.2d 490 (1977); Moody v. State, 520 S.W.2d 452 (Tex.Civ.App.—Austin 1975), writ ref’d n. r. e. per curiam, 547 S.W.2d 958 (Tex.1977). The court in Drane recognized these three classes of persons who have an insurable interest in the life of another: (1) one so closely related by blood or affinity that he wants the other to continue to live, irrespective of monetary considerations; (2) a creditor; and (3) one having a reasonable expectation of pecuniary benefit or advantage from the continued life of another. The court explained the third category in relation to the case before it as follows:

Bluntly expressed, insurable interest under (the third) classification, is determined by monetary considerations, viewed from the standpoint of the beneficiary. Would he regard himself as better off from the standpoint of money, would he enjoy more substantial economic returns should the insured continue to live; or would he have more, in the form of the proceeds of the policy, should she die?

The Pennsylvania Supreme Court held iii In re Gibbons Estate, 331 Pa. 36, 200 A. 55 (1938), that where an assignment is merely of a life interest, the assignee has an insurable interest since the amount of income to be received from the assigned estate depends directly upon the duration of the assignor’s life. Likewise, a tenant holding property or an estate during the life of another has an insurable interest in the latter’s life. 3 Couch on Insurance 2d § 24:153 (1960).

Further support for this holding is expressed in the 1975 amendment of the Texas Insurance Code, Tex.Ins.Code Ann. art. 3.39, which states that a life insurance company may invest in certain life income interests provided satisfactory evidence is presented that the life income interest is supported by life insurance in an amount not less than its admitted value.

The Treaty between Empire and Protective provides for the transfer of possession of the insurance policies to Protective and the assignment of the absolute and irrevocable right to receive proceeds in the amount of $4,350,000. The amount of the assignment is subject to adjustment as provided in a further provision of the Treaty. Notwithstanding the transfer of possession of the policies, the receiver of Empire will remain the owner and beneficiary of the policies. Empire continues, therefore, to have an insurable interest under the provisions of the Insurance Code. Tex.Ins.Code Ann. art. 3.49-1. Section 1 provides:

Any person of legal age may apply for insurance on his life in any legal reserve or mutual assessment life insurance company and in such application designate in writing any person, persons, partnership, association, corporation or other legal entity, or any combination thereof, as the beneficiary or beneficiaries, or the absolute or partial owner or owners, or both beneficiary and owner, of any policy or policies issued in connection with such application; and with respect to any such policy or policies any such beneficiary or owner so designated shall at all times thereafter have an insurable interest in the life of such person. .

Moody applied for the policies in question and designated Empire as beneficiary and owner. As such, under the provisions of the statute, Empire “shall at all times thereafter have an insurable interest.”

Article 21.28, Section 13, of the Insurance Code provides for the appointment of an ancillary receiver in this state. Such receiver has the right to possess the assets of the insurer in this state and has the same powers and is subjected to the same duties with respect to such assets as a receiver of a domiciliary insurer. Section 2 of Article 21.28 authorizes the receiver to take possession of the assets of such insurer and to deal with the same in his own name as receiver or in the name of the insurer as the court may direct. Under these provisions, the receiver was empowered to assign Empire’s right to receive the insurance proceeds to Protective to the extent necessary to secure the life income asset.

Judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

      . The Uniform Declaratory Judgments Act, Tex.Rev.Civ.Stat.Ann. art. 2524-1, provides in pertinent parts:
      Sec. 1. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and-effect; and such declarations shall have the force and effect of a final judgment or decree.
      Sec. 2. Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a Statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, Statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder. * * * * * *
      Sec. 5. The enumeration in Sections 2, 3, and 4 does not limit or restrict the exercise of the general powers conferred in Section 1, in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.
      * * * * * *
      Sec. 12. This Act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and is to be liberally construed and administered.

      . Income from the trust was paid to Empire or its receiver in various years as follows:
      1964 _$142,645.64
      1965 _$151,368.76
      1966 _$168,828.35
      1967 _$199,344.78
      1968 _$203,643.36
      1969 . $208,404.94
      1970 _$208,642.25
      1971. $211,551.70
      1972 _$215,370.99
      1973 _$216,648.96
      1974 _$225,909.80
      1975 _$234,367.93


author: BARROW, Justice.

text:
    Fred RIZK, Petitioner, v. FINANCIAL GUARDIAN INSURANCE AGENCY, INC., Respondent.
    No. B-8225.
    Supreme Court of Texas.
    July 18, 1979.

      Day & Elliott, Richard Elliott, Dallas, for petitioner.
    Ronald G. Wiesenthal, Houston, for respondent.
   BARROW, Justice.

This is an appeal from a summary judgment granted respondent on the pleadings in its suit on a sworn account to recover insurance premiums allegedly owed by petitioner and three other individuals d/b/a Sheraton-Safari Inn. The court of civil appeals affirmed. 576 S.W.2d 110. The principal question presented here is the sufficiency of the verified answer filed by Rizk. We reverse the judgments of the lower courts and remand the cause to the trial court.

The petition filed herein by respondent contains an affidavit that meets the requirements of Rule 185, Tex.R-Civ.Pro. Rule 93(k), Tex.R.Civ.Pro. makes a similar requirement. In response to this petition, Rizk filed an amended answer which stated:

“1.
Defendant denies each and every, all and singular the material allegations contained in Plaintiff’s Original Petition and demands strict proof thereof by a preponderance of the evidence as required by law.
“2.
Each and every item in Plaintiff’s account attached to the Original Petition as Exhibit “A” is not just or true in whole or in part. Defendant did not request Plaintiff to furnish the items listed therein or agree or promise to pay plaintiff for the charges shown therein.
“3.
Defendant asserts his affirmative defense of failure of consideration.
“4.
Plaintiff’s cause of action on its account, .or a part thereof, is barred by the applicable two year statute of limitations, and accordingly should be dismissed.
“5.
Defendant denies Plaintiff is entitled to recover any attorney’s fees in this cause, and furthermore denies that $4,000.00 is a reasonable attorney’s fee.”

This answer was supported by the affidavit of Rizk that “the facts and statements contained therein are true and correct of his own personal knowledge.”

The court of civil appeals concluded that the verified denial contained in Paragraph 2 of Rizk’s amended answer meets the requirements of Rule 185 as a denial of the whole of the account. It held, however, that this denial was destroyed by subsequent allegations of the answer wherein inconsistent or alternative defenses were alleged. Since a verification must be positive and unequivocal to be effective, the court of civil appeals concluded that Rizk’s answer was inconsistent and, therefore, did not destroy the evidentiary effect of respondent’s verified petition.

Rule 185 is not a rule of substantive law but is a rule of procedure with regard to evidence necessary to establish a prima facie right of recovery. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958). In the absence of a sworn denial meeting the requirements of the rule, the account is received as prima facie evidence as against a defendant sued thereon, and the defendant may not dispute the receipt of the items or services, or the correctness of the stated charges although he may defend on other grounds. 2 R. McDonald, Texas Civil Practice § 7.31 (rev. 1970). Most courts have been very exacting in the nature of the language used in sworn denials of a verified account. See Aztec Pipe & Supply Co. v. Sundance Oil Co., 568 S.W.2d 401 (Tex.Civ.App.—Houston [1st Dist.], writ ref’d n. r. e. per curiam, 576 S.W.2d 780 (Tex.1978); P. T. Poultry Growers v. Darr Equipment Co., 537 S.W.2d 773 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.); Oliver Bass Lbr. Co. v. Kay & Herring Butane G. Co., 524 S.W.2d 600 (Tex.Civ.App.—Tyler 1975, no writ); Youngblood v. Central Soya Company, Inc., 522 S.W.2d 277 (Tex.Civ.App.—Fort Worth 1975, writ ref'd n. r. e.); Cf. American Home Fence Co. v. Himes, 374 S.W.2d 777 (Tex.Civ.App.—Tyler, writ ref’d n. r. e. per curiam, 379 S.W.2d 290 (Tex.1964); Jones v. Houston Materials Company, 477 S.W.2d 694 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ).

It is settled, however, that a defendant’s verified denial of the correctness of a plaintiff’s sworn account in the form required by Rule 185 destroys the evidentiary effect of the itemized account attached to the petition and forces the plaintiff to put on proof of his claim. J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325 (1941); Cal-Tex Beef Processors, Inc. v. Frozen Food Exp., 530 S.W.2d 143 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.); Charlie Thomas Courtesy Ford, Inc. v. Sid Murray Agency, 517 S.W.2d 869 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Davis Bumper To Bumper, Inc. v. American Petrofina Co., 420 S.W.2d 145 (Tex.Civ.App.—Amarillo 1967, writ ref’d n. r. e.); Burrus Mills, Inc. v. Hein, 399 S.W.2d 950 (Tex.Civ.App.—Houston 1966, writ ref’d n. r. e.); Jones v. Eames, 369 S.W.2d 524 (Tex.Civ.App.— Eastland 1963, no writ).

We agree with the holding of the court of civil appeals that Rizk’s verified answer that each and every item in respondent’s account “is not just or true in whole or in part” was a denial of the whole account within the purview of Rule 185. However, we do not agree that this verified denial was nullified or destroyed by the other parts of Rizk’s answer.

We do not see any inconsistency in the denial of the whole account in the form required by Rule 185 and the remainder of Rizk’s answer which would nullify the statements in his affidavit. It is apparent that the account would not be true and correct as to Rizk if he had not ordered or agreed to pay for the items listed in the account attached to respondent’s petition. In this connection it is interesting to note that in respondent’s motion to sever the case as to Rizk from that of the other defendants, it was alleged that issues remained as to the existence of a partnership. Rizk’s affirmative defenses of failure of consideration and statute of limitations are clearly not inconsistent with his verified denial in the form required by Rule 185. These affirmative defenses could be raised even in the absence of a verified denial under Rule 185. King Title Co., Inc. v. Croft, 562 S.W.2d 536 (Tex.Civ.App.—El Paso 1978, no writ); P. T. Poultry Growers v. Darr Equipment Co., supra; First National Bank of San Angelo v. Sheffield, 475 S.W.2d 820 (Tex.Civ.App.—Austin 1972, no writ); Jorrie Furniture Company v. Rohm, 442 S.W.2d 476 (Tex.Civ.App.—San Antonio 1969, no writ). There is no valid reason why alternative pleadings may not be had in a suit on a sworn account within the restraints necessarily imposed by the required affidavit.

We conclude that the lower courts erred in holding that respondent was entitled to a summary judgment on its verified pleading. The verified denial by Rizk in the form required by Rule 185 destroyed the eviden-tiary effect of the itemized account attached to respondent’s petition. There was no summary judgment evidence offered by respondent in proof of this account. Since the judgment must be set aside and the cause remanded for a new trial, it is unnecessary to consider Rizk’s point complaining of the award of attorney’s fees.

The judgments of the lower courts are reversed and the cause is remanded to the trial court.

      . Rule 185 provides:
      “When any action or defense is founded upon an open account or other claim for goods, wares and merchandise, including any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true; provided, that when such counter-affidavit shall be filed on the day of the trial the party asserting such verified claim shall have the right to postpone such cause for a reasonable time. When the opposite party fails to file such affidavit, he shall not be permitted to deny the claim, or any item therein, as the case may be.” (Emphasis added.)