author: CORNELIUS, Chief Justice.

text:
    FORD MOTOR COMPANY, Appellant, v. Ronnie POOL and Wife, Nita Ann Pool, Appellees.
    No. 9315.
    Court of Appeals of Texas, Texarkana.
    Jan. 29, 1985.
    Rehearing Denied March 5, 1985.

      Richard Grainger, Paul Colley, Jr., Grainger, Patterson, Howard & Colley, Tyler, for appellant.
    Rex Houston, Wellborn, Houston, Adki-son, Mann & Sadler, Henderson, for appel-lees.
   CORNELIUS, Chief Justice.

Ford Motor Company appeals from a judgment awarding $5,483,571.00 to Ronnie Pool and Nita Pool in a personal injury products liability action. In seventeen points of error Ford raises issues dealing with the propriety of the jury submission on liability, prejudicial testimony and conduct at trial, exclusion of evidence, propriety of the jury finding that Pool was not negligent, and excessiveness of damages. We reverse because we find there was error in excluding Ford’s evidence concerning Pool’s prior violent tendencies and marital problems, and that the jury finding of no contributory negligence is against the great weight and preponderance of the evidence.

THE LIABILITY ISSUE

Ronnie Pool suffered brain injuries when his Ford pickup truck ran off the road and into a tree. Pool’s theory of liability was that the fastening of the right rear U-bolt on the rear suspension came off, causing the truck to go out of control. He pleaded and introduced evidence on both design defect and manufacturing defect theories, but the only liability issue submitted to the jury did not distinguish between a manufacturing or a design defect, and essentially defined defectiveness according to the “consumer expectancy test.” Ford objected to the submission on the ground that this was a design defect case, and under Turner v. General Motors Corp., 584 S.W.2d 844 (Tex.1979), only a risk-utility test could properly be submitted. Ford then requested that such a risk-utility instruction derived from Turner be submitted to the jury.

There are two different definitions of defectiveness for use in products liability cases in Texas. In cases involving manufacturing defects, defectiveness is defined according to a consumer expectancy test as submitted in this case. See Fitzgerald Marine Sales v. LeUnes, 659 S.W.2d 917 (Tex.App.—Fort Worth 1983, writ dism’d); Two Rivers Co. v. Curtiss Breeding Serv., 624 F.2d 1242 (5th Cir.1980). In design defect cases, defective design must be defined according to the risk-utility test stated by the Supreme Court in Turner v. General Motors Corp., supra. See Acord v. General Motors Corp., 669 S.W.2d 111 (Tex.1984). The approved definition is:

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.

The two definitions reflect the differences between the theories of recovery underlying manufacturing and design defect cases. The application of Section 402A of the Restatement (Second) of Torts (1965) to cases involving not only flawed products, but also to perfectly made but ill-designed products, has necessarily divided what was ostensibly a single theory of liability into two distinct theories. The distinction arises partly because of the inherent difference between the analysis centered on a flawed product and a product defectively designed.

Manufacturing defect cases involve products which are flawed, i.e., which do not conform to the manufacturer’s own specifications, and are not identical to their mass-produced siblings. The flaw theory is based upon a fundamental consumer expectancy: that a mass-produced product will not differ from its siblings in a manner that makes it more dangerous than the others. Defective design cases, however, are not based on consumer expectancy, but on the manufacturer’s design of a product which makes it unreasonably dangerous, even though not flawed in its manufacture. See Powers, The Persistence of Fault in Products Liability, 61 Texas L.Rev. 777 (1983); Keeton, Product Liability and the Meaning of Defect, 5 St. Mary’s L.J. 30 (1973). The consumer expectancy test is improper in design defect cases, then, because those cases are concerned only with the balancing of factors designed to determine if the risk of the design outweighs its utility.

Because the consumer expectancy test was submitted in this case and was not restricted to a manufacturing defect, it is possible that the jury improperly applied the test to evidence of a design defect and found the product defective on that basis. However, it is Ford’s burden to demonstrate that it was harmed by the submission of the issue. Tex.R.Civ.P. 434. To do so it must show there was no evidence or insufficient evidence to support a verdict based upon a manufacturing defect.

Considering only the evidence and inferences supporting the verdict, we find there was some evidence of a manufacturing defect. See Glover v. Texas Gen. Indent. Co., 619 S.W.2d 400 (Tex.1981). Plaintiffs’ expert, Dr. Tonn, testified that in his opinion the U-bolts on the truck had not been torqued to the same degree. He testified “that they both were not torqued on to the same degree at the factory.” The inference from this testimony is that a defect in the manufacturing process resulted in differing torque levels for U-bolts on the same truck. Although only Dr. Tonn testified specifically in favor of a manufacturing defect as the reason for the U-bolt’s failure, the plaintiffs presented substantial evidence that the U-bolt had in fact fallen off. Ford presented evidence that the U-bolt came off the truck only upon impact with the tree, but the conflict in the evidence was for the jury to resolve and there was sufficient evidence to sustain its finding that the U-bolt was defective.

Since there was evidence of a manufacturing defect and Ford has not demonstrated that the jury was confused or misled by the ambiguous issue, any error in the submission was harmless. Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex.1980). However, in order to avoid confusion in future cases where both manufacturing defect and design defect theories are alleged and supported by evidence, the issue should be restricted to one theory or another. Where issues on both theories are submitted the issues should be separated and the jury should be instructed only according to the Turner risk-utility test in the defective design issue, and the consumer expectancy test in the manufacturing defect issue.

EXCLUSION OF EVIDENCE

Pool offered damage evidence to the effect that because of the injuries he received in the accident he would in the future be more prone to violent conduct, to lose his temper, and to become unduly irritated and annoyed at minor everyday occurrences. In rebuttal Ford offered evidence that prior to the accident Pool had engaged in violent conduct toward his former wife, and that she had placed him under a peace bond on two occasions. The court refused to admit the evidence. Pool’s current wife, Nita, made a claim for loss of consortium, past and future, resulting from Pool’s injuries. In rebuttal of that claim Ford offered evidence showing that Pool had filed for a divorce from Nita, that Nita had sought a restraining order prohibiting Pool’s mother from interfering with their marriage, and that Nita and her husband had been and were separated. The court refused to admit the evidence.

Tex.R.Evid. 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

Rule 403 allows the exclusion of relevant evidence only when its relevance is substantially outweighed by unfair prejudice. The rule represents a codification of the rule announced by the Texas Supreme Court that courts should not exclude evidence without “very good cause.” Davis v. Davis, 521 S.W.2d 603 (Tex.1975); Texas Rules of Evidence Handbook, 20 Houston L.Rev. 1 (1983) (commentary by Professor Newell Blakely).

In this case each of the items of proof offered by Ford would have responded directly to proof introduced by Ronnie and Nita Pool on material elements of their causes of action, and none would have opened new areas of inquiry or injected substantially prejudicial facts. The evidence would have directly rebutted the damage testimony offered by Pool, and would have in all probability affected the amount of damages awarded. Thus, the exclusion was harmful error. Tex.R.Civ.P. 434. Pool argues that the evidence was immaterial on the consortium claim since the trial court ordered a remittitur of the damages awarded for future consortium. We disagree. The evidence was also relevant to the value of past consortium.

THE ISSUE OF POOL’S NEGLIGENCE

The jury found that Ronnie Pool was not contributorily negligent and assigned no percentage of comparative causation to him. The contributory negligence issue was submitted in a checklist form. Two of the alleged negligent acts were driving while intoxicated and speeding. Ford attacks the factual sufficiency of the jury’s answer to this special issue in arguing that such findings are against the great weight and preponderance of the evidence.

Because statutes prohibiting driving while intoxicated and speeding are safety statutes setting minimum standards of care, the jury was not permitted to decide that either of those acts did not constitute negligence. Thus, the jury’s finding that Pool was not negligent can be sustained only if there is sufficient evidence that Pool was not, in fact, intoxicated and was not, in fact, speeding at the time his vehicle left the road.

Ford produced evidence showing that immediately after the accident Pool had alcohol on his breath, there was a twelve-pack of beer near the truck and an open half can of beer in his truck, and hospital records taken at the time of his admission to the hospital showed that he had a blood alcohol content of 0.119.

The only evidence produced by Pool on the issue of intoxication was the testimony of several relatives and acquaintances who saw him at the American Legion Hall and other places during the several hours before the accident, and who said they noticed nothing unusual about his actions and in their opinion he was not intoxicated. There was no evidence to impugn the validity or reliability of the blood alcohol test. Considering all the evidence on the issue, we find insufficient evidence to overcome the presumption of intoxication raised by the blood test, and therefore hold that the jury’s finding on this issue is against the great weight and preponderance of the evidence.

Likewise, there was no real evidence that tended to prove that Pool was traveling at anything less than a speed of sixty miles per hour. Officer Waldie testified that in his opinion the vehicle was traveling at a speed in excess of seventy miles per hour. Pool’s accident reconstruction expert made a casual reference to fifty miles per hour, but when directly asked what his findings were he asserted that the speed at the time the U-bolt fell off was approximately sixty miles per hour. He testified that in his opinion such a speed was not unreasonable, but the prima facie reasonableness of such a speed has been foreclosed by statute. Tex.Rev.Civ.Stat. Ann. art. 6701d, § 166 (Vernon 1977). In the absence of one of the recognized exceptions to such a standard setting statute, conduct in violation of it is negligence per se. Without evidence of probative value rebutting excessive speed and without any evidence of emergency, incapacity, or impossibility, the statutory violation was established as a matter of law and the jury’s answer must be disregarded. Moughon v. Wolf, 576 S.W.2d 603 (Tex.1978). Although Pool argues that error is not shown because neither intoxication nor excessive speed was a proximate cause of the wreck, that issue is a matter for the jury to determine. And, because no attack is made on the legal sufficiency of the jury’s finding concerning intoxication and speed, the issue must be relitigated. Glover v. Texas Gen. Indem. Co., supra.

Because of our disposition of the other points it is not necessary that we pass upon the allegations concerning prejudicial conduct during the trial and the excessiveness of the damage awards.

The judgment of the trial court is reversed and the cause is remanded for a new trial.

      . The issue read:
      Was the right rear axle U-bolt assembly system defective at the time it left the possession of Ford Motor Company?
      “Defective” means a condition of the product that renders it unreasonably dangerous.
      An "unreasonably dangerous” product is one that is dangerous to an extent beyond that which would be contemplated by the ordinary user of the product, with the ordinary knowledge common to the community as to the product’s characteristics.

      . The requested instruction read: "Unreasonably dangerous means taking into consideration the utility of the product and the risk involved in its use.”

      . At the time of the accident in question, Tex. Rev.Civ.Stat.Ann. art. 67017-5, § 3(a) (Vernon 1977), provided that the presence of 0.10 percent alcohol by weight in a person’s blood raised a presumption of intoxication. Article 67017-l(a)(2)(B) (Vernon Supp.1984), effective 1-1-84, declares that 0.10 or more is intoxication.


source: Caselaw Access Project

author: COLLEY, Justice.

license: Public Domain

text:
    Arminta Carter ARNOLD, individually and as co-executor and co-trustee under the will of Douglass H. Arnold, Deceased, Appellant, v. CROCKETT INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 12-83-0073-CV.
    Court of Appeals of Texas, Tyler.
    Feb. 21, 1985.

      William L. Bowers, Jr., Houston, Eugene M. McElyea, Crockett, for appellant.
    F. Duane Force, Law Offices of Gates Steen, Austin, for appellee.
   ON MOTION FOR REHEARING

COLLEY, Justice.

Appellee, Crockett Independent School District, in its motion for rehearing in this cause, asserts that we erred (1) in the computation of the amount of taxes, penalty, interest and attorneys’ fees allowed District in that portion of the trial court’s judgment that was severed and affirmed, and (2) in adjudging a portion of the court costs in the trial court and all of the cost of this appeal against the District. We admit both errors. Prior to the enactment of the Texas Tax Code, effective January 1, 1982,

former Articles 7297 and 7343, TEX.REV. CIV.STAT.ANN. (Vernon 1960) had been construed as exempting independent school districts from payment of all court cost and from filing a cost bond on appeal. Nacogdoches Independent School District v. McKinney, 513 S.W.2d 5 (Tex.1974); Sour Lake Independent School District v. Easterling, 142 S.W.2d 237, 238 (Tex.Civ.App.—Beaumont 1940, writ ref’d). The question of whether an independent school district is liable for any court cost, at trial or on appeal, must now be determined by the provisions of Section 33.49(a), reading:

Except as provided by subsection (b) of this section, a taxing unit is not liable in a suit to collect taxes for court cost ... and may not be required to post security for the cost. (Emphasis added.)

We have concluded that the provisions of Section 33.49(a) exempt District from liability for any court cost whether incurred at the trial court level or in this appeal. Two reported Courts of Appeal decisions support our conclusion. Brady Independent School District v. Davenport, 663 S.W.2d 637, 638-639 (Tex.App.—Austin 1983, no writ), and Kerrville Independent School District v. Southwest Texas Encampment Association, 673 S.W.2d 256, 261 (Tex.App.—San Antonio 1984, writ ref’d n.r.e.). By citing Brady, we should not be understood as approving the reasoning of the Austin court in that opinion which implies that Section 42.28 has application to a suit by a school district or other taxing unit to collect delinquent taxes. In fact, if any of the sections embodied in Chapter 42 of the Tax Code were applicable to delinquent tax suits, then Section 42.07 of that chapter which authorizes the “reviewing court” to adjudge the cost of “an appeal taken as provided in this chapter against any of the parties” would empower us to adjudge the cost in this appeal against the District. We have concluded that the provisions of Section 42.28 are applicable only to appeals authorized and provided by Chapter 42 from determinations made by the Appraisal Review Board.

Therefore, District’s motion for rehearing is granted, and our opinion delivered on December 31, 1984, is withdrawn, and the following opinion substituted therefor.

Arminta Carter Arnold, defendant/appellant, individually and as Co-Independent Executor and Trustee of the estate of her deceased husband, Douglass H. Arnold, appeals from an adverse judgment rendered in a bench trial in a suit brought by Crockett Independent School District, plaintiff/appellee (District), for collection of delinquent ad valorem taxes levied against land and personal property belonging to Arnold. We affirm in part and reverse in part and remand.

For the sake of clarity we refer to the separate parcels of real estate and the personal property here involved by the Item number assigned such parcels in the court’s judgment signed on January 20, 1983.

At trial, the District introduced, through the testimony of its tax assessor, Edna Panell, the delinquent tax roll of the District showing values assessed against the various items of property, the tax rate, the percentage of the value assessed, computation of the net taxes, penalty and interest and a 15% attorneys’ fee due the District.

This suit was brought to collect delinquent taxes for the years 1971 through 1981, both inclusive, except for Item 3 which involves only the years 1972 through 1981, both inclusive. The District offered no testimony at trial as to the reasonable cash market value of the Arnold land for any of the taxable years involved, choosing rather to make its prima facie case for recovery of the delinquent taxes. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 572 (1954). Under such circumstances, the taxpayer has the onerous burden of establishing that the value assessed on each parcel by the Board of Equalization for the District was grossly excessive, and therefore unreasonable and confiscatory, establishing that fraud attended the assessments. French Independent School District v. Howth, 134 Tex. 211, 214, 134 S.W.2d 1036, 1037 (Tex. Comm’n App. 1940, opinion adopted); Johnson v. Holland, 17 Tex.Civ.App. 210, 43 S.W. 71, 73 (Tex.Civ.App. 1897, writ ref’d); State v. Whittenburg, supra at 573. In order for a taxpayer to prevail in his defense of a tax suit on the basis of excessive assessments, the difference in the value of the assessments and the market value of the property must be gross because a difference in value which reflects a mere difference of opinion or an honest mistake in judgment on the part of the Board of Equalization as to the true value will not justify a court in striking down the Board’s assessments. State v. Whittenburg, supra at 573. See also Dallas County v. Dallas National Bank, 142 Tex. 439, 179 S.W.2d 288, 289 (1944).

The record before us clearly reveals that, except with respect to Item 2 (for the taxable year 1971) and Item 4, tract (a) (for the taxable year 1971), the trial court found that the reasonable cash market value of each of Arnold’s properties in dispute here was the value assessed thereon by the District. Jake Lyons, a qualified appraiser, testified for Arnold, and the following table compares the values assessed by the District, those found by the trial judge in his findings of fact, and the values established by Lyons’ testimony, to-wit:

TABLE

PROPERTY DISTRICT’S TRIAL COURT’S VALUES TAXABLE LYONS’

ITEM ASSESSMENT (Findings) YEARS VALUES

2 $82,888 $44,400 1971 $31,280

2 44,440 44,440 1972-1981 28,520

3(a) 3,410 3,410 1972-1981 970

(b) 12,000 12,000 1972-1981 6,520

(e) 10,840 10,840 1972-1981 2,100

4(a) 49,067 41,480 1971 10,971

(a) 41,480 41,480 1972-1981 10,971

(b) 7,110 7,110 1971-1981 2,220

5 37,210 37,210 1971-1981 16,533

6 personal

property 17,780 17,780 1971-1981 -0-

The trial court, based on its findings, rendered a judgment for the District in the total sum of $47,990.11, including taxes, penalty, interest and attorneys’ fees. Arnold claims under her first point of error that the court’s findings of values are so against the great weight of the evidence as to be manifestly wrong and unjust. A study of Arnold’s statements and argument under the point of error reveals that Arnold does not complain of the court’s findings and judgment as to property Item number 1, and tracts (c) and (d) of Item 3.

Our review of all the evidence adduced at trial leads us to the conclusion that the trial court’s findings of market value of property Items 2, 3 (tracts [a], [b] and [e]), 4, 5 and 6 are contrary to the great weight and preponderance of the evidence. Arnold’s point of error one is sustained.

We need not address Arnold’s second point of error complaining of the late preparation and filing by the trial judge of findings of fact in view of our disposition of Arnold’s first point.

That portion of the judgment awarding the District a recovery against Arnold for delinquent ad valorem taxes, penalty, interest and a 15% attorneys’ fees as to Item 1, consisting of lots 58 and 60 of block 36 of the original town of Crockett, Houston County, Texas, described in Vol. 254, page 549 of the Houston County Deed Records, and tracts (c) and (d) of Item 3, consisting of the East one-half of lot 1, and all of Lot 2 all in block 7, Depot Addition, Vol. 205, page 14 of the Houston County Deed Records, and lot 6, block 2, Downes Addition, for the taxable years 1972 through 1980, both inclusive is severed and reformed to provide that the Crockett Independent School District recover of and from Arminta Carter Arnold, individually and as Co-Independent Executor and Trustee of the estate of her deceased husband, Douglass H. Arnold, the aggregate sum of $805.68 which includes net taxes, penalty, interest and a 15% attorneys’ fees thereon respecting the above described properties, and as reformed and severed, that portion of the judgment is affirmed; otherwise, the judgment is reversed and the cause remanded for a new trial. Only the costs incurred by Arnold in the trial court and in this court are adjudged against her, and no costs are adjudged against District.

In the event of a retrial of this cause as to the taxes, penalties, interest and attorneys’ fees due in respect to Items 2, 4, 5, 6 and tracts (a), (b) and (e) of Item 3, if the trier of the facts finds that the existing assessed valuations of such properties are grossly excessive, then cancellation of the existing assessments for the taxable years in controversy should follow, and additional findings should be made by the court or jury, as the case may be, based on the evidence adduced, of the reasonable cash market value of each of such properties on January 1 of the taxable years involved so that a proper determination of the taxes, penalties, interest and attorneys’ fees can be made, and a judgment rendered in favor of the district thereon within the limits allowed under former article TEX.REV. CIV.STAT. art. 7329, subd. 3 or the district is free to proceed under former TEX. REV.CIV.STAT. art. 7346 to re-assess such property. Whelan v. State, 155 Tex. 14, 282 S.W.2d 378, 384-385 (1955).

      . Repealed by Acts 1979, 66th Leg. ch. 841, § 6(a)(1), 1979 Tex.Gen.Laws 2329.

      . All references to Sections are to the Texas Tax Code (Vernon 1982).

      .An independent school district is a "taxing unit.” Section 1.04(12).

      . 1972 value with a decline in value in 1981 to the value of $12,872.

      . 1971 value with decline in value to 1981 value of $12,000.

      .Testimony at trial showed no personal property except for junked vehicles, obsolete cotton gin and cotton compress machinery which under Lyons’ testimony had no market values.

      . Acts second called session 1923, p. 36 (Tex. Rev.Civ.Stat., art. 7329 [Vernon 1960]), repealed by Acts 1979, ch. 841, § 6, 1979 Tex.Gen. Laws 2329.

      . Acts 1905, p. 318 (Tex.Rev.Civ.Stat. art. 7346 [Vernon 1960]), repealed by Acts 1979, ch. 841, § 6, 1979 Tex.Gen.Laws 2329.


author: BENAVIDES, Justice.

text:
    Guadalupe OCHOA, Jr., Appellant, v. STATE of Texas, Appellee.
    No. 13-84-329-CR.
    Court of Appeals of Texas, Corpus Christi.
    Feb. 28, 1985.
    Robert Weathers, Corpus Christi, for appellant.
    Grant Jones, Dist. Atty., Corpus Christi, for appellee.

      Before NYE, C.J., and BENAVIDES and SEERDEN, JJ.
   OPINION

BENAVIDES, Justice.

Appellant was indicted for the offense of burglary of a habitation. The State also alleged a prior conviction of aggravated robbery for enhancement purposes. Appellant elected to have the court assess punishment, and, after the jury found appellant guilty of burglary of a habitation, the court sentenced appellant to thirty years’ confinement in the Texas Department of Corrections. We affirm.

Appellant does not challenge the sufficiency of the evidence; therefore, no recitation of the facts is necessary.

Appellant’s first ground of error is a complaint that the trial court erred in failing to charge on the lesser included offense of criminal trespass. Appellant’s brief merely argues that criminal trespass is a lesser included offense of burglary of a habitation. This is certainly true, Daniels v. State, 633 S.W.2d 899 (Tex.Crim.App.1982), but does not address the issue of whether the evidence required submission of a charge on criminal trespass.

Appellant’s counsel has not only failed to cite to any portion of the record where that evidence appears, thereby disregarding TEX.CODE CRIM.PROC.ANN. art. 40.-09(9.) (Vernon Supp.1984), but has also failed to even describe what that evidence might be.

This Court has examined the record, but has found nothing that would support submission of an instruction on criminal trespass. The Defendant did not take the stand at the guilt/innocence phase of the trial and we have found no competent evidence that required the trial court to submit a charge on criminal trespass. Therefore, appellant’s first ground of error is overruled.

In his second ground of error, appellant alleges that the trial court erred in admitting evidence of an involuntary extrajudicial statement. At trial, a police officer was allowed to testify that the appellant had stated to him that appellant had sold one of the stolen items (a lawn mower) and described the location at which and person to whom such stolen lawn mower was sold. Upon finding the location, the police officer did in fact recover the stolen lawn mower (taken from the burglary for which appellant was convicted and which conviction he appeals from herein).

TEX.CODE CRIM.PROC.ANN. art. 38.-22 § 3(a) (Vernon Supp.1985) provides that oral statements of an accused are inadmissible unless the State complies with certain safeguards. However, § 3(c) creates an exception for statements that lead to the discovery of secreted or stolen property. See Marini v. State, 593 S.W.2d 709 (Tex.Crim.App.1980). If appellant’s statement was voluntarily made, then it was admissible under Art. 38.22 § 3(d).

The transcript contains an order by the trial court holding appellant’s oral confession voluntary and admissible. That order includes findings that appellant was advised of his rights, was free of narcotics and intoxicants, and was aware of his actions. However, we have no record of that hearing in the record before us. Accordingly, the issue urged by appellant cannot be reviewed on the record before us. The burden to present a sufficient record is on the appealing party. Rivera v. State, 581 S.W.2d 161, 163 (Tex.Crim.App.1979). Appellant’s second ground of error is overruled.

In his third ground of error, appellant alleges the trial court committed fundamental error and denied appellant his right to due process of law when the court refused to consider appellant’s pro se motion to strike the enhancement paragraph of the indictment.

We have examined appellant’s pro se motion and note that there is no request for a hearing. Contrary to the assertions now made in his brief, the transcription of the sentencing hearing suggests that the trial court considered appellant’s motion, for the judge stated that he did not think he was “in error on the repeat felony.”

In any event, appellant’s complaint, that the enhancement paragraph must allege that the preceding conviction became final prior to the commission of the instant offense, is founded on the rule of Ex parte Holley, 339 S.W.2d 903 (Tex.Crim.App.1960). Ex parte Holley was subsequently overruled by Scott v. State, 553 S.W.2d 361, 363 (Tex.Crim.App.1977). The averment in an indictment that a defendant has been convicted is sufficient to charge the finality of the alleged prior conviction. Id. The allegation of finality is no longer required and the indictment herein alleges a prior felony conviction and is not defective for failing to allege the finality of such conviction. Appellant’s third ground of error is overruled.

The judgment of the trial court is AFFIRMED.

      . In appellant’s brief, his counsel also complains that the trial court erred by refusing to submit an instruction on burglary of a building. Inspection of the transcript reveals that such an instruction was submitted, over counsel’s objection, to the jury.


author: BURGESS, Justice.

text:
    RELIANCE UNIVERSAL, INC., Appellant, v. SPARKS INDUSTRIAL SERVICES, INC., Appellee.
    No. 09 83 250 CV.
    Court of Appeals of Texas, Beaumont.
    March 28, 1985.
    Rehearing Denied April 18, 1985.

      B. Edward Williamson, Michael J. Maz-zone, Houston, for appellant.
    Larry Hunter, Buddie J. Hahn, Vidor, for appellee.
   OPINION

BURGESS, Justice.

This is a Deceptive Trade Practices Act (DTPA) case, complicated by a plea in abatement question. The specific facts will be discussed as they relate to each point of error. The parties, for simplicity, will be referred to as Sparks and Reliance.

Point of error number one alleges the trial court erred in overruling Reliance’s plea in abatement. In July, 1980, Reliance filed an action in Harris County against Sparks alleging Sparks had failed to pay for materials sold and delivered to it. On September 9, 1980, Sparks filed suit in Orange County alleging Reliance had made certain express warranties concerning the materials and the materials were unfit for the purpose intended, had breached an implied warranty of merchantability, had breached the implied warranty of fitness, had engaged in false, misleading, or deceptive acts or practices, was negligent in failing to properly test and maintain the quality of the materials, was negligent in failing to properly supervise and instruct Sparks employees in the proper applications of Reliance’s products and had furnished a defective product under the doctrine of strict liability.

On September 30, 1980, a default judgment was entered against Sparks in Harris County. Subsequently, Sparks was granted a new trial. Sparks then filed a plea of privilege, and it was overruled. Sparks appealed and in December, 1980, the first Court of Appeals affirmed the Harris County trial court. In the meanwhile, Reliance had filed a plea in abatement seeking to abate the Orange County suit because of the prior suit being filed in Harris County. Reliance filed its plea alleging the parties and controversy in each suit were identical and thus, the Harris County suit having been filed first, the second suit should be abated. Curtis v. Gibbs, 511 S.W.2d 263 (Tex.1974) recognized the general common law rule in this area. The controlling issue in our case is whether or not Sparks’ causes of action were compulsory counterclaims under TEX.R.CIV.P. 97(a). If they were, abatement was required, if not, it was not required. In order for Sparks’ claims to be compulsory counterclaims they must have arisen out of the same transaction or occurrence. Reliance’s original claim in Harris County was based upon a failure to pay for material supplied, i.e., breach of contract. Some of Sparks’ claims in the Orange County action do arise out of the same transaction and are compulsory counterclaims. Some of Sparks’ claims, specifically, the negligence allegations, do not arise out of the sales contract. The sales transaction was completed upon the delivery of the materials to Sparks and Reliance’s course of action arose out of Sparks’ failure to pay for the materials. Venue in that case was set because the sale invoices call for payment in Harris County. Sparks’ negligence claims arose after the sales transaction was completed and when Reliance came to Orange County to aid Sparks in applying the materials to the railway cars. These alleged negligent acts were separate and apart from any contract for the sale of materials. Therefore, they are not compulsory counterclaims.

If part of Sparks’ course of action is not a compulsory counterclaim, then the trial court is not required, as a matter of law, to abate the second action. We find no abuse of discretion in not abating. Point of error number one is overruled.

The second point of error claims the trial court erred in submitting the damage issue and, thereafter, erred in not granting Reliance’s motion for judgment notwithstanding the verdict because the damages were limited by the contract between Sparks and Reliance.

In January 1980, Sparks contacted Reliance about the purchase of paint in order to reline some railroad hopper cars belonging to Cities Services Company. Several orders were placed and the transaction, several invoices and packing slips were received by Sparks. Reliance claims these invoices constituted a written contract between the parties and each invoice and packing slip contained language which limited Reliance’s liability. The following language appeared:

Since methods and conditions of application and use are beyond our control, the products described below are sold and received without warranty of suitability or fitness for Buyer’s particular purpose and subject to the condition that Seller’s liability as to any product (a) is limited to a failure of the product caused by its non-conformance with the original shipment or sample sent to the Buyer, as to which written claim is made within 30 days from date of shipment, and (b) is in any event limited to the return of the purchase price. Please see. Condition 2 and other conditions on the reverse side of the customers [sic] acknowledgment for complete terms of sale.

Reliance alleges the language in the invoices are part of the contract and are allowable under TEX.BUS. & COM.CODE ANN. sec. 2.719 (Vernon 1968). The effect of this would be to limit Reliance’s liability to the purchase price of the paint.

Sparks answers that TEX.BUS. & COM. CODE ANN. sec. 1742 (Vernon Supp.1985) makes such clauses void and unenforceable, that TEX.BUS. & COM.CODE ANN. sec. 2.316 (Vernon 1968) requires such clauses to be “conspicuous” and that the clause in question is not, and that the clause is effective only to limit a recovery based upon contract and not a recovery based upon violations of the DTPA. As to Sparks first contention, Ellmer v. Delaware Mini-Computer, 665 S.W.2d 158 (Tex.App.—Dallas 1983, no writ) addressed the question of whether sec. 17.42 of the DTPA rendered provisions made under 2.719 unenforceable. The court stated at 161: “We conclude the question has been resolved adversely to Datafast by G-W-L, Inc. v. Robinchaux, 643 S.W.2d 392 (Tex.1982), where the Supreme Court gave effect to the disclaimer in a deceptive trade practice case.” Our reading of G-W-L, Inc. v. Robinchaux, supra, does not lead us to the blanket statement of the Dallas Court. G-W-L was breach of warranty case and we believe the Supreme Court’s holding is limited only to that type of action, not to deceptive trade practice cases in general. In any regard, see. 17.42 does not render contractual limitation clauses void and unenforceable in any and all cases.

Sparks’ next contention seeks to apply TEX.BUS. & COM.CODE ANN. sec. 2.316 (Vernon 1968) to the contractual limitations allowed by sec. 2.719. This would be the case, if the limitation in this case was an attempt to modify or excluded a warranty. It is not. It is a contractual limitation on the amount of damages recoverable.

A similar case is Rinehart v. Sonitrol of Dallas, Inc., 620 S.W.2d 660 (Tex.Civ.App.—Dallas 1981, writ ref’d n.r.e.). Here suit was brought for breach of an express warranty under the DTPA. The court held the contract between the parties constituted a warranty under the DTPA, but since the plaintiff was relying upon the express warranty in the contract, the plaintiff was bound by a $5000.00 limitation contained in the warranty. The thing that distinguishes the instant case from the others is that here Sparks pleaded and received favorable jury answers to a sec. 17.46 DTPA cause of action in addition to the breach of warranty action. The jury found Reliance had represented the goods were of a particular standard, quality or grade when they were of another and had represented the goods had characteristic ingredients, uses or benefits which they did not have. They further found such representations to be a producing cause of Sparks’ damages. Were this case solely a breach of contract case or a breach of warranty case, Reliance’s arguments would be somewhat persuasive, but it is not. Reliance can not urge the contractual limitation provision as a defense to a sec. 17.46 DTPA misrepresentation cause of action. Point of error number two is overruled.

Reliance’s final point of error is the trial court erred in overruling their motion for judgment notwithstanding the verdict because there is no evidence to support the jury’s answer to the damage issue and the trial court erred in overruling their motion for new trial and entering judgment because there is insufficient evidence to support the jury’s answer to the damage issue. Reliance’s attack is two pronged. First, they question the evidence used to determine the lost profit per railroad car and second, they question the evidence as to the number of cars to be relined. Reliance admits that Sparks had a contract with Cities Service to reline 25 cars at a price of $1,665.00 per car. The evidence concerning the bid price is as follows:

“[SPARKS ATTORNEY]: Now, initially, ..., when you bid this job with Cities Service, was there some type of calculations that you figured to come up with your bid price?

“[WITNESS]: Yes. I calculated each job to see what the cost was prior to making the bid.

and sixty-five dollars, could you tell the Jury how you arrived at that figure?

“[WITNESS]: Yes. We calculate — first calculate the materials. These cars are five thousand two hundred and fifty cubic feet. That’s approximately twenty-seven hundred and fifty square feet. The paint specifications sheets from the manufacturer tell you how many square feet that a gallon of paint will cover for the millage desired. So, using the number the paint calls for the primer per car, one gallon according to Reliance’s specification sheets, one gallon of Rel-Pon 70 mixed covers two hundred and ninety-eight square feet for four mills. We know ourselves from our own experience that you need to add approximately twenty-five percent excess. So we add twenty-five percent excess and this calculates out to eleven point five six gallons of paint. We round that off to twelve gallons for cost purposes and that’s what we ordered.

“[SPARKS ATTORNEY]: What did you determine to be—

“[WITNESS]: Plus thinner, excuse me.

“[SPARKS ATTORNEY]: Okay. What did you determine to be the cost of paint including the base and top coat?

“[WITNESS]: Base and top coat. The cost of paint was Six Hundred Seventy-three dollars. That’s including thinner. I haven’t added the — there’s miscellaneous costs that I add to this for sand, for the blasting sand, and for the tape and various condiments that you use, paper, so this total price is Eight Hundred Thirty-one Dollars cost per car. We try to bid fifty percent gross profit so we double that figure. So we arrived at the Sixteen Hundred Sixty-five dollars.

“[SPARKS ATTORNEY]: Is that a representative figure of cost ordinarily in the job?

“[WITNESS]: Yes, it is. We might bid a job a little higher than that if it’s just for a small amount of cars, number of cars. But these are new cars we’re speaking of. New cars are all bid—

“[SPARKS ATTORNEY]: Would old cars be charged out at higher than that?

“[WITNESS]: Yes.

“[SPARKS ATTORNEY]: Why would that be?

“[WITNESS]: They take more labor.

“[SPARKS ATTORNEY]: In what respect?

“[WITNESS]: Incidentally, I stand corrected. I gave you labor and materials in this Six Hundred and something dollars. Paint actually cost Three Hundred Fifty-Three Dollars per car.

“[SPARKS ATTORNEY]: Okay. But the total labor, materials and everything was Eight Thirty-One?

“[WITNESS]: Yes.

“[SPARKS ATTORNEY]: Tell the Jury very briefly why it is that old cars would require more labor to do than new cars?

“[WITNESS]: It takes longer to blast out the old paint inside the cars than it does to remove mill scale. If you’re doing complete reline, you blast out the old paint completely so depending on how tough a product is to remove, it usually takes— we’ll spend an average of six — let’s say eight man hours for a new car and you’ll spend something like close to twenty man hours for an old car to blast it out. So you have more labor. The material and sand cost is the same.

“[SPARKS ATTORNEY]: So approximately what is the average cost of relining an old car?

“[WITNESS]: Approximately a thousand dollars, then, at that time.

“[SPARKS ATTORNEY]: Well, what I’m speaking of is to sandblast a typical relining job on an old car?

“[WITNESS]: Yes. A thousand dollars.

“[SPARKS ATTORNEY]: I thought you said that old cars are more expensive, cost more to do than new cars?

“[WITNESS]: Well, new cars cost Eight Thirty-one.

“[SPARKS ATTORNEY]: Oh, I’m sorry. You’re giving me — what I’m talking about is the total charge.

“[WITNESS]: Oh, my charge at that time was two thousand dollars for an old car.

“[SPARKS ATTORNEY]: And what would you estimate to be your cost of doing that job?

“[WITNESS]: A thousand dollars.

“[SPARKS ATTORNEY]: So, again, your gross profit on the job would be approximately a thousand dollars on a relining job and approximately eight hundred thirty dollars, or thereabouts, on a new car?

“[WITNESS]: Yes. Our objective is fifty percent gross profit.

“[SPARKS ATTORNEY]: Now, have you done some calculations concerning the profit which you would have expected to receive from the initial twenty-five car order?

“[WITNESS]: Yes, I have.

“[SPARKS ATTORNEY]: How much would that be?

“[WITNESS]: The total revenue would have been forty-one thousand six hundred twenty-five dollars and our profit figure would have been half of that; fifty percent.

“[SPARKS ATTORNEY]: Approximately what would that be?

“[WITNESS]: I need my calculator. I have all the new cars, the profit—

“[SPARKS ATTORNEY]: What was that figure again, forty-two thousand?

“[WITNESS]: Forty-one thousand six twenty-five. I have all of the cars that was discussed, the profit factor worked out on that.

“[SPARKS ATTORNEY]: You were paid for one of those ears, weren’t you?

“[WITNESS]: Yes.

“[SPARKS ATTORNEY]: Sixteen hundred and sixty-five dollars?

“[WITNESS]: Yes.

“[SPARKS ATTORNEY]: So then the gross would come back down to — I think we could round it off to forty — it would actually be thirty-nine thousand nine hundred and eighty?

“[WITNESS]: Yes. Pardon? Twenty. Oh, yes, the gross.

“[SPARKS ATTORNEY]: Then your gross business profit would have been half of that, or approximately twenty thousand dollars?

“[WITNESS]: Yes.

“[SPARKS ATTORNEY]: What about on the additional sixty-one car order if you had been able to get that order?

“[WITNESS]: That would have been a hundred and one thousand five hundred sixty-five revenue. I have the total profit figure for all the cars.

“[SPARKS ATTORNEY]: Why don’t you give that to me?

“[WITNESS]: Two hundred thirty-seven thousand eight hundred eighty-two dollars was the profit. The revenue would have been four hundred eighty-one thousand eight hundred and ninety dollars. That’s for the two hundred and sixty-one and the twenty-thousand eight hundred and ninety dollars. That’s for the two hundred and sixty-one and the twenty-five.”

To recover for lost profits, it is not necessary that the loss be susceptible to exact calculation. It is sufficient that the amount of loss is shown by competent evidence with reasonable certainty. Southwest Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938); White v. Southwestern Bell Telephone Co., Inc., 651 S.W.2d 260 (Tex.1983). There was evidence to the effect that Sparks had not obtained a fifty per cent profit margin on an annual basis. There was additional testimony on this point:

“[SPARKS ATTORNEY]: Just to cover a couple of points with you if I could. Mr. Williamson had pointed out, for example, in 1980 there was only a 27 percent margin from gross profit; is that correct?

“[WITNESS]: That’s for the total year, yes.

* * * * * *

“[SPARKS ATTORNEY]: Now, in December or January of 1980 when you started, I believe you told the jury you were trying to obtain this 50 percent margin. Were you able to do that?

“[WITNESS]: Not the first month, not in November. It took about a month, 35, 40 days to get our system in operation in getting the work-flow coming.

“[SPARKS ATTORNEY]: What about in January? Were you able to—

“[WITNESS]: In December, yes, we did.

“[SPARKS ATTORNEY]: What about in January? -

“[SPARKS ATTORNEY]: What about February?

“[WITNESS]: February, yes. We exceeded it 50 percent.

“[SPARKS ATTORNEY]: What about March?

“[WITNESS]: March, yes.

“[SPARKS ATTORNEY]: What about April?

“[WITNESS]: April, yes.

“[SPARKS ATTORNEY]: What about May?

“[WITNESS]: Yes.

“[SPARKS ATTORNEY]: What about June?

“[WITNESS]: June, our gross profit was okay, but our revenue had started dropping drastically in June. I think the charts will show that there. We couldn’t achieve our—

“[SPARKS ATTORNEY]: In July were you able to achieve that 50 percent?

“[WITNESS]: No.

“[SPARKS ATTORNEY]: Or thereafter?

“[WITNESS]: No, not thereafter.

“[SPARKS ATTORNEY]: What do you attribute that to?

“[WITNESS]: This episode with the Reliance paint.

“[SPARKS ATTORNEY]: Specifically, though, excluding that, from a dollar standpoint, what are you — loss of revenue?

“[WITNESS]: Loss of revenue, yes.

“[SPARKS ATTORNEY]: But during this period of time, February, March, April of 1980, you were achieving a 50 percent profit margin.

“[WITNESS]: Yes, sir, in excess.”

The evidence was conflicting on the point. It was for the jury to determine which figure was correct. White, supra. The witness was an experienced businessman and manager. The jury certainly had the right to disregard or give no weight to his testimony. The testimony was given in terms of calculations and thus is more than conjecture, speculation or guesswork. There was competent evidence before the jury.

Reliance next attacks the damages awarded as to loss of other profits. Sparks’ case regarding this centers around a letter written from Cities Services Company to Sparks. It follows:

“Thank you for confirmation of $1665.00 price for lining 25 cars. Commitment on the 61 cars due late this year at the same price of $1665.00 will depend on the quality and timeliness of the cars now being processed. This is true of the following 200 cars at the price of $1695.00 each, signed R.E. Howard, Manager, Transportation Operations.”

The crux of the matter is whether this and other evidence is sufficient to sustain the jury’s finding. Taken alone, the letter would be sufficient to sustain the jury’s award. One may consider business which might have been expected in light of past development and existing conditions. Southwest Battery Corp. v. Owen, supra. This letter and its intent was hotly contested. There was considerable evidence as to whether or not Sparks would have gotten the remaining 261 cars and what factors would have influenced the decision. If the jury only had the letter and conflicting testimony, the jury’s award would certainly be suspect. There is, however, other competent evidence before the jury which aids them in making their determination of lost profits. Sparks had received numerous contracts from other companies in the recent past and during this time. These contracts were approximately for the same number of cars and for the same price. Sparks had completed these contracts with little or no complaint concerning the quality or timeliness of the work. There was evidence that Sparks had a history of receiving repeat business. All of these factors the jury could have considered in arriving at the amount of lost profits. If there is conflicting evidence of probative nature in the record, a determination of the issue is for the jury. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422 (1952). Having used the appropriate criteria for the determination of no evidence and insufficient evidence points, Garza v. Alviar, 395 S.W.2d 821 (Tex.1965), Goodyear Tire & Rubber Co. v. Jefferson Construction Co., 565 S.W.2d 913 (1978), there is sufficient evidence to support the jury’s findings. Point of error number three is overruled. The judgment of the trial court is affirmed.


author: DODSON, Justice.

text:
    LAMB COUNTY APPRAISAL DISTRICT, Appellant, v. SOUTH PLAINS HOSPITAL-CLINIC, INC., Appellee.
    No. 07-83-0163-CV.
    Court of Appeals of Texas, Amarillo.
    March 29, 1985.
    Rehearing Denied April 29, 1985.

      Caíame, Linebarger & Graham, Russell R. Graham, Austin, for appellant.
    Smith, Baker, Field & Clifford, Inc., Edward R. Smith, Blumrosen & McDonald, J.R. Blumrosen, Lubbock, for appellee.
    Before DODSON, COUNTISS and BOYD, JJ.
   DODSON, Justice.

The trial court rendered a declaratory judgment determining that certain property owned by the South Plains Hospital-Clinic, Inc. is exempt from ad valorem taxes pursuant to Tex.Tax Code Ann. § 11.18 (Vernon 1982) and Tex. Const, art. VIII, § 2. After a bench trial, the court made findings of fact and conclusions of law. Appealing from the judgment, the Lamb County Appraisal District challenges three findings of fact and one conclusion of law and claims the trial court erroneously admitted one exhibit into evidence. Concluding that the appraisal district’s points of error do not present cause for disturbing the judgment, we affirm.

By its first three points of error, the appraisal district claims the evidence is factually insufficient to support the trial court’s findings that: (1) the hospital is organized exclusively to perform charitable purposes by providing medical care without regard to the beneficiaries’ ability to pay; (2) the hospital is operated in a way that does not result in realization of private gain resulting from payment for salary or other compensation in excess of a reasonable allowance for salaries or other compensation for services rendered or realization of any other form of private gain; and (3) any non-charitable functions performed by the hospital are only incidental to the organization’s charitable functions.

In its fourth point of error, the appraisal district maintains that the trial court erred by admitting “Plaintiff’s Exhibit Number 5” over its objection “that no proper predicate had been laid to show the Exhibit’s admissibility.” By its fifth point of error, the appraisal district claims that the trial court erred by rendering judgment for the hospital based on the court’s conclusion of law that the hospital “is so organized and operated as to qualify for tax exemption as a charitable organization, within the meaning of section 11.18, Texas Property Tax Code, and as an institution of purely public charity, within the meaning of article 8, section 2, Texas Constitution” because that “conclusion of law is neither supported by the facts nor the law.”

Tex. Const, art. VIII, § 2 provides, in part, that the Legislature may, by general law, exempt certain property from taxation, including all buildings used exclusively and owned by institutions of purely public charity. The phrase “institution of purely public charity” is not defined in the Constitution. However, in City of Houston v. Scottish Rite Benev. Ass’n., 111 Tex. 191, 230 S.W. 978, 981 (1921), the court suggested the following definition:

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

The court further explained that:

Chanty need not be universal to be public. It is public when it affects all the people of a community or state, by assuming, to a material extent, that which otherwise might become the obligation or duty of the community or the state. The care of those unable to provide for themselves certainly may devolve on those of the same community or state, [emphasis added]

Since the court’s decision in City of Houston, numerous Supreme Court decisions have acknowledged, reaffirmed, and further explained the suggested guidelines. In that regard, the most recent decision by the Supreme Court is City of McAllen v. Ev. Luth. Good Sam. Soc., 530 S.W.2d 806 (Tex.1975). That case and others will be discussed in this opinion as we resolve the appraisal district’s points of error and contentions.

Pursuant to the constitutional provisions, the above-stated guidelines and the court’s explanations and interpretations of those guidelines, the Legislature implemented article VIII, section 2 of the Constitution by enacting section 11.18 of the Texas Tax Code Annotated. Section 11.18(a) provides that a qualified charitable organization is entitled to the ad valorem tax exemption on buildings and tangible personal property owned by the organization which are used exclusively by the organization. However, in regard to exclusive use, the exemption is not lost where the property is used by persons who do not qualify as charitable organizations, if that use is incidental to the qualified charitable organization’s use and that use is limited to activities that benefit the beneficiaries of the qualified charitable organization which owns or uses the property.

To qualify as a charitable organization under section 11.18(c) and 11.18(d) of the statute, the organization must:

(1) Be organized exclusively to perform charitable purposes and engage exclusively in providing medical care without regard to the beneficiaries’ ability to pay; provided however, in regard to exclusive purpose and performance, the charitable organization’s exemption is not lost by performing non-charitable functions, if those functions are incidental to the organization’s charitable functions;

(2) Be operated in a way that does not result in accrual of distributable profits, realization of private gain resulting from payment of compensation in excess of a reasonable allowance for salary or other compensation for services rendered, or realization of any other form of private gain; and

(3) By charter, bylaws, or other regulation adopted to govern the organization’s affairs, pledge its assets for use in performing the organization’s charitable functions and “direct that on discontinuance of the organization by dissolution or otherwise, the assets are to be transferred to this State or to an educational, religious, charitable or other similar organization that is qualified as a charitable organization under Section 501(c)(3), Internal Revenue Code of 1954, as amended.”

In this instance, the record shows that the hospital is located in Amherst, Lamb County, Texas. The town of Amherst has approximately 900 to 1000 people. The hospital was originally chartered as a nonprofit cooperative hospital in 1940 or 1941. In 1964, by charter amendment, the hospital was incorporated under the Texas NonProfit Corporation Act. The hospital’s stated purpose provides, in part:

To establish, maintain, and operate on a non-profit basis an open-staff medical hospital of sufficient capacity to serve the needs of the City of Amherst and County of Lamb and the surrounding area; which hospital and all of its facilities shall at all times be open for use by and of all qualified Doctors of Medicine as determined by Board of Trustees, without limitations as to specialty, in the treatment and care of their patients; to emphasize in the treatment of patients the general practice of medicine and the science and art of dealing with the prevention, cure and alleviation of disease and human suffering; to acquire, erect, maintain, and operate a benevolent and public charitable hospital in such city and county for the purpose of administering to the sick, to the infirm, to the helpless, to the elderly, to the maimed and to the afflicted of all creeds, colors, and nationalities as may be brought or presented at such hospital for the treatment and nursing care, regardless of their ability to pay.... [emphasis added]

The hospital is governed by a Board of Directors consisting of seven members. The term of each member of the Board is three years. The directors are elected to the board from the membership. Any person over twenty-one years of age, who has used the hospital facilities, is a voting member of the corporation. A voting member is eligible to serve on the Board of Directors. However, no member of the hospital’s staff or other employee is qualified to serve as a director while so connected with the corporation. In that regard, the evidence shows that no doctor has ever served on the Board of Directors.

The hospital has an open-staff policy. There are five doctors and one dentist on the medical staff. The dentist lives in Lubbock, Texas (a' distance of approximately fifty miles), and practices at the hospital only one day a week. One of the medical doctors lives and practices in Lubbock; however, he travels to Amherst twice a week to read X-ray film and perform consulting work. No applying physician has ever been denied staff privileges at the hospital.

The evidence further shows that the hospital has considerable difficulties in obtaining doctors for the medical staff. One member of the Board of Directors testified that he had served on the board for approximately twelve years, that during that period of time he personally attempted to recruit approximately fifteen different doctors for the staff, and that he had been able to help in obtaining only one doctor.

Four doctors work at the hospital on a regular day-to-day basis. The doctors are compensated under a written arrangement entitled “Hospital and Medical Staffs Working Agreement.” That arrangement states:

I. Hospital agrees to furnish.
1. Office Space
2. Utilities
3. Telephone service for professional use
4. Licensed vocational nurse, paying all salary and fringe benefits
5. Furniture, equipment, and instruments for examining rooms
6. Furnishings for personal office
7. All medical supplies, medications and injectable drugs for treatment patients.
8. Well-stocked pharmacy for patient prescriptions
9. Diagnostic facilities such as Laboratory, X-ray, E.K.G., ultra sound, and nuclear medicine.
10. Services of dietary consultant for outpatients
11. Complete bookkeeping services including patient registration, billing, collection, insurance filing, typing and transcription of dictation.
12. Total housekeeping services
13. Noon meal on working days
II. For services listed above South Plains Hospital-Clinic, Inc. will retain 10% of collected Dr. fees, [emphasis added]

The record further shows that one doctor on the staff has been with the hospital since the mid-1950s. Initially, that doctor’s compensation arrangement with the hospital was sixty percent to the doctor and forty percent to the hospital on collected doctor’s fees. Later, the arrangement was revised to a seventy/thirty percent split. Presently, that doctor is compensated under the ninety/ten percent arrangement.

As the result of many factors, it is exceedingly difficult for the hospital to obtain and retain full-time staff doctors who are willing to live and practice in Amherst. By increasing the compensation to the doctors, the hospital is able to obtain and retain the services of the four full-time doctors presently on the staff. One of the staff doctors was recruited by a $60,000.00 per year guarantee. However, that doctor’s present compensation is under the ninety/ten percent arrangement.

It is a matter of common knowledge and the evidence in this instance shows that it is not feasible to operate a hospital without doctors. It is also a matter of common knowledge that it is very difficult to obtain and retain competent doctors in the small towns and rural areas of the state. In that regard, the evidence shows that the hospital has never been able to attract as many doctors as its administrative and medical staff feel it needs.

The record further shows that the hospital annually has approximately 16,000 outpatient visits and 1100 inpatient hospitalizations. Although the inpatient and outpatient count includes repeat visits, the evidence shows 517 persons were charity patients in 1981. Charity services rendered in 1981 by the hospital were $121,724.98 to inpatients and $9,813.36 to outpatients. On the average, the hospital annually renders services in excess of $100,000.00 to charity patients. Additionally, the hospital has an annual bad debt rate of fifteen percent.

The hospital receives no funds from any source other than paying patients. Nevertheless, the hospital’s charges for services rendered to patients is generally lower than charges at other hospitals in the immediate area (i.e., Littlefield and Mulesh-oe). In that regard, there are no government-owned and operated hospital facilities in the immediate area. The privately-owned hospital in Littlefield (which is the only hospital relatively near to the Amherst hospital) does not always accept charity patients. The hospital in question has never refused a charity patient. Furthermore, the record shows that the hospital is classified as a charity hospital under the provisions of I.R.C. § 501(c)(3) (West Supp.1984).

In the hospital’s area, there are a number of Spanish-speaking patrons. Three of the hospital’s four full-time staff speak Spanish. In the recent past, the area has suffered an unusually high infant mortality rate. By directing its efforts to obtaining an OB/GYN doctor, the hospital has effectuated a reduction in the infant mortality rate. The hospital’s efforts, in that regard, were not profit motivated, since the delivery of babies is one of the most unprofitable services rendered by the hospital.

Whether the hospital in question is a qualified charitable organization (i.e., an institution of purely public charity) is one of fact. See B.P.O.E. Lodge No. 151 v. City of Houston, 44 S.W.2d 488, 493 (Tex.Civ.App.—Beaumont 1931, writ ref'd). In this instance, the trial court’s expressed and implied findings of fact support its judgment. On appeal, the appraisal district directly challenges only three of the expressed findings of fact.

The appraisal district’s contentions under the first three points of error (which challenge the factual sufficiency of the evidence to support findings numbered one, three, and seven) are primarily based on its assertion that the hospital’s standard of proof to establish tax-exempt status is “beyond any doubt.” To support that assertion, the appraisal district primarily relies on a statement by the courts in City of Longview v. Markham-McRee Memorial Hosp., 137 Tex. 178,152 S.W.2d 1112 (1941) and Santa Rosa Infirmary v. City of San Antonio, 259 S.W. 926 (Tex.Comm’n App. 1924, judgmt adopted).

The appraisal district’s reliance is misplaced. Texas recognizes only three standards of proof. Those standards are: “beyond a reasonable doubt” in criminal cases; “by clear and convincing evidence” in the termination of parental rights and involuntary mental commitment cases; and “by a preponderance of the evidence” in all other civil cases. See In re G.M., 596 S.W.2d 846 (Tex.1980); State v. Addington, 588 S.W.2d 569 (Tex.1979); State v. Turner, 556 S.W.2d 563 (Tex.1977), cert. denied, 435 U.S. 929, 98 S.Ct. 1499, 55 L.Ed.2d 525 (1978).

In City of Longview and Santa Rosa the courts did not establish a different standard of proof (i.e., beyond any doubt) for exempt status in tax cases. In those cases, the courts merely acknowledged that principle of law which states:

Exemptions from taxation are never favored, and in the construction or interpretation of a law tending exemption from taxation to any citizen or class of property all doubts are resolved against the exemption.

City of Longview v. Markham-McRee Memorial Hosp. 152 S.W.2d at 1113 (quoting Santa Rosa Infirmary v. City of San Antonio, 259 S.W. at 931). That principle states a rule of construction and interpretation rather than a standard of proof.

In this instance, the standard of proof is by a preponderance of the evidence. Consequently, in determining the appraisal district’s factual sufficiency challenges, we must consider all of the evidence in favor of and adverse to each challenged finding to ascertain if that finding is so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973).

By its first point of error, the appraisal district challenges the trial court’s first finding of fact. That finding reads: “South Plains Hospital-Clinic, Inc., is organized exclusively to perform charitable purposes by providing medical care without regard to the beneficiaries’ ability to pay.” The appraisal district claims that finding is “against the great weight” of the evidence. Under this point of error, the appraisal district argues that the hospital is not organized exclusively to perform charitable purposes by providing medical services without regard to the beneficiaries’ ability to pay because in actual practice, the hospital has failed to follow the stated purpose. To support its argument, the appraisal district relies on the testimony of one patron who claimed the hospital required him to make a deposit before his wife was admitted to the hospital to give birth to a. baby.

Even if we assume arguendo that the hospital required the patron to make a deposit before admitting his wife, that evidence does not establish that the hospital abandoned its purpose. The evidence further shows that the patron was employed, had insurance and had regularly used the hospital facilities. When asked if he considered himself or his wife a charity patient, the patron responded, “Well, I would like to be.” From the record, it is obvious that the patron in question had the ability to pay and would pay when required to do so. Furthermore, the overwhelming evidence in the record shows that no patient has ever been denied needed medical or hospital services because of inability to pay. Receiving income from paying patients does not destroy the organization’s charity status. See City of McAllen v. Ev. Luth. Good Sam. Soc., 530 S.W.2d at 809.

The appraisal district further argues that the hospital facilities are not exclusively used for the hospital’s stated purpose because the hospital has no stated admissions policy or policy for determining charity status. However, the record shows that patients are admitted to the hospital on the medical staff’s directions when the patient’s doctor determines that the patient needs hospital care. When that medical determination is made, the patient is admitted to the hospital without regard to the patient’s ability to pay. Since the hospital cannot practice medicine, per se, only its staff doctors can make the medical determination as to whether a patient needs hospital care.

The patient’s charity status is determined from the staff’s knowledge of the patient’s ability to pay {i.e., by the patient’s prior ability to pay for previous treatment) and from information furnished by the patient in the “Information Sheet” which includes information as to employment, insurance, and other similar matters. Thus, the record shows that the hospital’s admission policy and its implementation of that policy in actual practice does not contravene the hospital’s stated purpose. Consequently, after considering all of the evidence in favor of and contrary to the trial court’s first finding of fact, we conclude that the challenged finding is not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. The appraisal district’s first point of error is overruled.

By its second point of error, the appraisal district claims the trial court’s third finding of fact is “against the great weight” of the evidence. The third finding of fact reads:

3. South Plains Hospital-Clinic, Inc., is operated in a way that does not result in realization of private gain resulting from payment of compensation in excess of a reasonable allowance for salary or other compensation for services rendered, or realization of any other form of private gain.

Under this point, the appraisal district contends the third finding is erroneous because the record shows two types of private gains that destroy the hospital’s tax-exempt status.

The appraisal district argues that the first type of “private gain is medical treatment provided at no charge to certain individuals solely because of their relationship to the [hjospital or the medical staff.” In that regard, one staff doctor, who had been with the hospital since 1954, testified that he occasionally did not charge some individuals such as employees of the hospital, or members of the employee’s family, or a long-time friend for services rendered. However, there is nothing in the record to show the doctor’s no-billing practice occurred frequently or for any substantial amount of service rendered. The record does show the practice occurred only occasionally over the years {i.e., approximately 18 years) that the doctor had been at the hospital. Thus, even if we assume arguen-do that the doctor’s practice of occasionally not billing some individuals is a non-charitable function of the hospital, we are persuaded that those functions are de minim-is and merely incidental to the organization’s charitable functions. See section 11.-18(a).

Next, the appraisal district argues that the doctors’ compensation arrangement with the hospital constitutes “private gain” to the doctors because the hospital retains only ten percent of the doctors’ collectible fees for overhead services furnished the doctors rather than a forty percent amount which doctors normally have to pay for overhead in private practice. However, in that regard, section 11.18(c)(2) provides that the organization must be operated in a way that does not result in “realization of private gain resulting from payment of compensation in excess of a reasonable allowance for salary or other compensation for services rendered.”

In this instance, the record shows, as we stated above, that Amherst is a town of approximately 900 to 1000 inhabitants. The town is located approximately fifty miles from Lubbock in a rural area of Texas. It is extremely difficult to obtain and retain the services of doctors in Amherst. It is a matter of common knowledge and the record in this instance shows that it is not feasible to operate a hospital without doctors. Thus, from the evidence, we are persuaded that the hospital’s compensation arrangement with the doctors is reasonable and not excessive under the circumstances. Consequently, after considering all of the evidence in favor of and contrary to the trial court’s third finding of fact, we conclude that the challenged finding is not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. The appraisal district’s second point of error is overruled.

By its third point of error, the appraisal district challenges the trial court’s seventh finding of fact. That finding reads: “Any noncharitable functions performed by South Plains Hospital-Clinic, Inc., are only incidental to the organization’s charitable functions.” Under this point of error, the appraisal district contends that the trial court’s third finding of fact is “against the great weight of the evidence” because the evidence establishes beyond any doubt that: (1) the hospital’s only source of income is from paying patients; (2) the hospital’s so-called “charity” is its fifteen percent of uncollectible bills; and (8) that the hospital’s small percentage of charity patients shows that the hospital’s primary purpose is to treat paying patients and that any “charity” is purely incidental to its primary purpose.

We acknowledge that the record shows that the hospital’s only source of income is from paying patients; however, that fact does not destroy the hospital’s charity status. See City of McAllen v. Ev. Luth. Good Sam. Soc., 530 S.W.2d at 810. We disagree that the evidence establishes that “the hospital’s so-called ‘charity’ is its fifteen percent of uncollectible bills.” The record shows that in addition to the usual fifteen percent rate of uncollectible bills, the hospital provided charity to 517 persons in the year of 1980 alone and that over a two-and-one-half-year period beginning in January 1980 and ending in June 1982, the hospital provided $248,307.76 of services to charity patients.

We further disagree that the hospital’s small percentage of charity patients shows that the hospital’s primary purpose is to treat paying patients and that any “charity” is purely incidental to its primary purpose. The record shows that eight to fifteen percent of the hospital’s patients were charity patients. However, as the court stated in City of McAllen:

[I]t is well settled that the fact that paying patients predominate over those unable to pay does not detract from the charitable nature of the service rendered.... Reliance upon percentages of paying patients versus nonpaying patients, however, should not be the controlling factor. With the advent of present day social security and welfare programs, the traditional concept of charity, involving the extension of free services to the poor and alms-giving, will be rarely found since wide ranging assistance is available to the poor under such programs. Furthermore, the courts have defined charity to be something more than mere alms-giving or the relief of poverty and distress, [emphasis added]

530 S.W.2d at 810. The ultimate consideration is whether this organization has assumed “to a material extent, that which otherwise might become the obligation or duty of the community or state.” Id. In this instance, the evidence shows that the hospital has assumed that obligation to a material extent.

Even though the appraisal district’s contentions under its third point of error do not directly challenge the trial court’s third finding of fact, we have considered all of those contentions and overrule them. Furthermore, we have considered all of the evidence in favor of and contrary to the trial court’s seventh finding of fact, and conclude that the finding is not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. Consequently, the appraisal district’s third point of error is overruled.

By its fifth point of error, the appraisal district claims that the trial court erred by rendering judgment for the hospital based on the court’s conclusion of law that the hospital “is so organized and operated as to qualify for tax exemption as a charitable organization, within the meaning of section 11.18, Texas Property Tax Code, and as an institution of purely public charity, within the meaning of Article 8, Section 2, Texas Constitution” because that “conclusion of law is neither supported by the facts nor the law.” The appraisal district’s contentions under this point of error are related to its contentions and arguments made under the first three points of error.

In summarizing its contentions under the fifth point of error, the appraisal district states that: (1) the evidence presented in the trial court wholly fails to support the findings and conclusions of the trial court; (2) the “evidence shows beyond a doubt that the operation of Appellee institution results in substantial private gain to both Doctors and others;” (3) “the properties owned by Appellee are not used exclusively by it for its alleged ‘charity’ functions;” (4) the “evidence shows that in actual practice patients of Appellee institution are not admitted without regard to their ability to pay;” and (5) “the evidence shows that such ‘charity’ as may be provided by Appel-lee, if any, is purely incidental to its primary purpose which is to provide local Doctors with a facility from which to conduct their practices in treating patients who pay in full for such treatment.”

The appraisal district’s first contention under this point of error is broad, general, and actually presents nothing further for review. The appraisal district’s second contention was considered, discussed, and overruled by our disposition of the appraisal district’s second point of error.

By its third contention under this point of error, the appraisal district renews the claim that the hospital’s facilities are not exclusively used for the hospital’s alleged charity functions. In that regard, the appraisal district argues that the use in not exclusive because the doctors are provided office space in the hospital facilities and other services necessary to conduct a private medical practice. In that connection, the district claims the furnishing of office space and the other services is tantamount to a lease of the hospital facilities which destroys the property’s exempt status. To support its position, the appraisal district relies on City of Longview v. Markham-McRee Memorial Hosp., 137 Tex. 178, 152 S.W.2d 1112 (1941).

In City of Longview, the court determined that the organization did not qualify for tax-exempt status because two doctors rented office space from the organization for $100.00 per month and conducted their independent, private medical practice from those office facilities. In that regard, the court pointed out that even though the doctors performed certain functions of house physician, they were not, in fact, house physicians or subsidiaries of the charitable owners, but that the charitable organization had turned over to the doctors a substantial part of the facilities to be used by the doctors for their own private purposes.

In this instance, and as the court pointed out in Santa Rosa Infirmary v. City of San Antonio, 259 S.W. at 932, “there is no claim here that any part of the hospital building was leased out in the ordinary sense.” In that connection, the record shows there is no landlord-tenant relationship between the hospital and the doctors. Furthermore, the evidence shows that the doctors performed all of the functions of house physicians. The hospital owns and operates all of the facilities. The record does not show that the hospital has turned over to the doctors any part of its facilities. We acknowledge that the doctors do practice at the hospital facilities, that the hospital provides the doctors with the necessary services for the doctors to treat patients at the hospital facilities, and that the hospital retains ten percent of the collectible fees charged for the doctor’s services rendered to the patients. However, that arrangement does not destroy the hospital’s tax-exempt status, since the doctors’ services are essential and incidental to the hospital’s charitable functions. See section 11.18(a).

By its fourth contention under the fifth point of error, the appraisal district claims the evidence shows that in actual practice patients are not admitted to the hospital without regard to their ability to pay. In resolving the appraisal district’s contentions under its first three points of error, we pointed out that the great weight and preponderance of the evidence shows that the hospital has never denied needed medical or hospital services to any patient because of inability to pay.

By its fifth contention under the fifth point of error, and relying on Aransas Hospital, Inc. v. Aransas Pass Ind. Sch. Dist., 521 S.W.2d 685 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.), the appraisal district claims the hospital should be denied tax-exempt status because the hospital is not being operated “as a hospital that assumed to a material extent burdens which might otherwise fall upon the community which it served.” The appraisal district further argues that the hospital does not benefit persons, indefinite in numbers and personalities, by preventing them, through absolute gratuity, from becoming burdens to society and to the State.

In Aransas Hospital, Inc., the court determined that the trial court did not err by refusing to find that the hospital in question was an institution of purely public charity. The record in Aransas Hospital, Inc. shows, among other things, that the evidence revealed only “four instances where the Hospital furnished services that undoubtedly were purely charitable in nature.” Id. at 689. The record further shows that in a five-year period the hospital could classify only seventy-eight persons as charity because those persons had not paid all of the $12,861.90 which had been billed to them.

In this instance however, the record shows that the hospital in question had 517 charity patients in 1980. The record further shows that the hospital rendered approximately $248,307.76 in charity services over the two-and-one-half-year period beginning in January 1980 and ending in June 1982. Thus, from our review of the entire record, we are persuaded that the evidence shows the charitable gratuities extended by the hospital were “of an unconditional nature,” and that the hospital had assumed “to a material extent, that which otherwise might become the obligation or duty of the community or the state.” City of McAllen v. Ev. Luth. Good Sam. Soc., 530 S.W.2d at 809-10. The appraisal district’s fifth point of error is overruled.

By its fourth point of error, the appraisal district claims the trial court erred by admitting “Plaintiff’s Exhibit Number 5” over its objection “that no proper predicate had been laid to show the Exhibit’s admissibility.” We disagree.

“Plaintiffs Exhibit Number 5” is identified in the record as a partial list of the names and account of services rendered to charity patients by the hospital for the two-and-one-half-year period beginning in January 1980 and ending in June 1982. The list was prepared by the hospital’s administrator who had worked for the hospital for eighteen years and served as administrator for the last ten years. The administrator prepared the exhibit from the hospital records. The administrator testified from her own personal knowledge that the individuals named on the list were charity patients of the hospital. However, she did state that the list did not show all of the hospital’s charity patients because the record system had changed and she was not able to identify all of the charity patients. However, she could personally identify the names shown on the list and the amount of services rendered to those patients.

In this Court, the appraisal district claims the challenged exhibit is inadmissible because it does not comply with Tex. Rev.Civ.Stat.Ann. art. 3737e (Vernon Supp. 1985). However, that objection to the admissibility of the exhibit was not voiced or raised in the trial court. In that regard, the record shows that the exhibit was twice offered by the hospital. The first time the exhibit was offered, the appraisal district made a general objection to the effect that the exhibit was not relevant. The trial court charitably sustained the objection.

After further testimony, the exhibit was re-offered. At that time, the appraisal district’s counsel stated: “Your Honor, I still am going to object,” and stated an argument that challenged the exhibit’s weight and credibility rather than its admissibility. Responding to the counsel’s statement, the trial court said, “Is [sic] that is the sole objection, it is overruled.”

The record reveals that the appraisal district failed: (1) to inform the trial court that it was objecting to the exhibit on the ground “that no proper predicate had been laid to show the exhibit’s admissibility” and (2) to object to the exhibit on the ground that it did not comply with article 3737e. It is well established that objections to the admissibility of evidence not made in the trial court present nothing for review in the appellate court. Seymour v. Texas & N.O.R. Co., 209 S.W.2d 814 (Tex.Civ.App.—El Paso 1947, writ ref’d); Barton v. Bailey, 202 S.W.2d 277 (Tex.Civ.App.—Eastland 1947, writ ref’d n.r.e.); Barrera v. Duval County Ranch Co., 135 S.W.2d 518 (Tex.Civ.App.—San Antonio 1939, writ ref’d). See also Hooten v. Dunbar, 347 S.W.2d 775 (Tex.Civ.App.—Beaumont 1961, writ ref’d n.r.e.). Consequently, we overrule the appraisal district’s fourth point of error.

In summary, we overrule the appraisal district’s five points of error and affirm the judgment of the trial court.

      All further references to sections refer to Tex. Tax Code Ann. (Vernon 1982), in effect at all times pertinent to this case.