SOUTHLAND FUNERAL HOME, FROM A DISTRICT COURT INC., BRUCE BEAN, QUENTIN D. BURGE, OLEN MASSEY, AND RALPH GEISSNER, APPELLANTS, v. DAN R. RUSK, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00846-CV
 
SOUTHLAND FUNERAL HOME,                 FROM A DISTRICT COURT
INC., BRUCE BEAN, QUENTIN
D. BURGE, OLEN MASSEY,
AND RALPH GEISSNER,
 
 
        APPELLANTS,
 
 
v.
 
 
DAN R. RUSK,
 
 
        APPELLEE.                                          OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, LAGARDE AND KINKEADE
OPINION BY JUSTICE KINKEADE
JULY 24, 1989
        Dan M. Rusk sued Southland Funeral Home, Inc., Bruce Bean, Quentin D. Burge, Olen Massey, and Ralph Geissner (appellants) for injuries Rusk sustained while working for appellants. After trial before a jury, the trial court entered judgment for Rusk against appellants in the amount of $476,811.36. Appellants assert thirty-two points of error. We reverse the judgment against Geissner individually and render judgment that Rusk take nothing against Geissner. In all other respects, the judgment of the trial court is affirmed.
FACTS
        Southland Funeral Home, Inc. (Southland), employed Rusk as an embalmer and funeral director. The shareholders of Southland were Bean, Burge, Massey, and Geissner.
        On June 10, 1985, while mopping a floor in the embalming room, Rusk suffered an electric shock from an embalming machine. Kurt Heebner, who was working with Rusk at the time, heard a muffled pop and then saw Rusk leaning against a counter and then fall to the floor. A doctor described Rusk's injuries as "profound left-side weakness and left side sensory loss."
        Rusk sued appellants for negligence and breach of a contract to provide medical and salary benefits after sustaining an injury on the job. Rusk also alleged that Southland was the alter ego of Bean, Burge, Massey, and Geissner. Appellants asserted a general denial; they alleged that Rusk was an officer of Southland, knew the limited extent of insurance coverage, and was, therefore, barred from any recovery. They also asserted that Rusk was contributorily negligent. Massey asserted a third party action against Embalmers' Supply Company, Inc. (ESCO), on the basis that ESCO was the manufacturer of the embalming machine. Should Massey be found liable, Massey wanted a judgment against ESCO for indemnity. After the trial court granted ESCO's motion for summary judgment, appellants sought to join Cedar Memorial Funeral Home, John B. Turner & Sons, Inc., and Conrac Corporation as third party defendants, but the trial court overruled their motion.
        The jury found in favor of Rusk on the negligence issues (jury questions one through three) and against Rusk on the contract issue (jury question four). The jury also found that Southland was the alter ego of Bean, Burge, Massey, and Geissner (jury questions seven through ten).
        The trial court entered judgment against appellants jointly and severally in the amount of $476,811.36. Appellants assert thirty-two points of error. Rusk asserts one cross-point, wherein he requests damages for delay pursuant to rule 84 of the Texas Rules of Appellate Procedure.
POINTS OF ERROR ONE THROUGH THREE
        In points of error one, two, and three, appellants argue that there was insufficient evidence to support a finding that the corporation was the alter ego of (1) Bean, (2) Burge, and (3) Massey. When considering factual insufficiency points of error, appellate courts must consider and weigh all the evidence in the record to determine if it supports the judgment. Holsworth v. Czeshin, 632 S.W.2d 643, 644 (Tex. App.--Corpus Christi 1982, no writ). Only if the jury finding is so against the great weight and preponderance of the evidence as to be manifestly unjust will the appellate court set it aside. In re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951).
        The evidence shows that Bean, Burge, and Massey began Southland as a partnership and a few months later, they filed papers to incorporate. In 1971 the corporate charter was forfeited for failure to pay franchise taxes and remained forfeited until reinstatement in 1985. Burge testified that Southland paid the shareholders a salary and that Southland's accumulated profits were also distributed as salary. The corporation did not adopt by-laws. For the five years preceding the accident, Southland the corporation filed no federal tax returns. Burge also testified that on the date of Rusk's accident, "[a]s far as [the] financial statements [were] concerned," the net worth of Southland was a lot less than $100,000. In view of this evidence, the jury findings do not appear manifestly unjust. See In re King's Estate, 244 S.W.2d at 661. Appellants' points of error one through three are overruled.
 
POINT OF ERROR FOUR
        In point of error four, appellants argue that the trial court failed to properly instruct the jury as to the requirements for an alter ego finding. Appellants' brief asserts that the court's instruction authorized the jury to find the corporation to be the alter ego of the individual shareholders if they found a lack of (1) separateness of corporate formalities, (2) corporate tax returns, (3) corporate property, (4) corporate contracts, or (5) corporate bank accounts. Appellants argue that such an instruction is not supported by the law or the facts of this case. Appellants maintain that the only evidence presented to the jury showed that there was a lack of adherence to corporate formalities and that the a lack of corporate formalities is not a sufficient basis for piercing the corporate veil.
        "Any complaint as to a[n] . . . instruction, on account of any defect, . . . is waived unless specifically included in the objections." TEX. R. CIV. P. 274. Appellants' objection at trial was that the instruction commented on the weight of the evidence because it allowed the jury to consider whether the corporation ceased to exist but did not inform the jury that they could consider whether the corporation was reinstated and restored to a status of good standing. The alleged defects argued in appellants' brief were not specifically included in their objections at trial. Accordingly, they are waived. TEX. R. CIV. P. 274. Appellants' fourth point of error is overruled.
POINTS OF ERROR FIVE AND SIX
        In points of error five and six, appellants contend that there was (5) no evidence or, in the alternative, (6) insufficient evidence to support a finding that Geissner was individually liable on the basis that Southland was his alter ego. When determining a no evidence point of error, appellate courts must consider only the evidence that supports the finding and then in its most favorable light. Holsworth, 632 S.W.2d at 644. Southland issued Geissner four percent of its shares in 1969 or 1970, and Geissner has held that stock ever since that time. Geissner met virtually every day with Bean, Burge, and Massey. Geissner described his contribution to the meetings as follows: "[W]e meet virtually every day in some form or another for operation of the business, for business decisions such -- and I occasionally get included and asked my opinion about some of those things, basically funeral operation." Geissner described himself as basically an employee of Southland that owned some stock. Rusk asserts that Geissner received a share of Southland's profits; however, Rusk's statement-of-facts page citation in support of that allegation reveals only the following:
            [Rusk's Attorney:] Is it the policy of the company to take whatever profits the company has made from time to time and divide that profit according to the percentage of ownership in the company?
 
            [Geissner:] I don't make that decision. I assume it is. There is -- You know, that's how the income comes.
 
            [Rusk's attorney:] Because that's how it's been done?
 
            [Geissner:] As far as I know that's the manner it's done.
 
            [Rusk's Attorney:] No further questions.
        Merely owning stock in a corporation and exercising the control that stock ownership gives a shareholder does not show that the shareholder is using the corporation as his alter ego. See Gentry v. Credit Plan Corp. of Houston, 528 S.W.2d 571, 573 (Tex. 1975). When an individual abuses the corporate privilege, courts will disregard the corporate fiction and hold the person individually liable. See Castleberry v. Branscum, 721 S.W.2d 270, 271 (Tex. 1986). The above evidence, even when viewed in a light most favorable to the judgment, is no evidence that Geissner abused the corporate privilege. As a shareholder, Geissner was not responsible for filing corporate tax returns or creating by-laws. The fact that Geissner appears to have received a share of the profits does not show an abuse of the corporate privilege, because all shareholders receive a share of the corporation's profits--in the form of dividends. Simply because Bean, Burge, and Massey may have paid out the profits in the form of salary instead of dividends does not show that Geissner abused the corporate privilege; the evidence does not show that Bean, Burge, and Massey consulted Geissner on how to distribute the corporate profits; the evidence shows just the contrary. Alter ego is shown by the amount of financial interest, ownership, and control the individual maintains over the corporation. Castleberry, 721 S.W.2d at 272. Geissner owned only four percent of the stock. The evidence, even when viewed in the light most favorable to the judgment, shows that the extent of Geissner's "control," if it can be called that, was sometimes Bean, Burge, and Massey would ask Geissner his opinion about how a particular funeral should be conducted. We hold that there was no evidence that Southland was Geissner's alter ego. We sustain point of error number five. Because of our disposition of point of error five, we do not address the merits of point of error six--whether the evidence was insufficient to support the judgment against Geissner individually.
POINT OF ERROR SEVEN
        In point of error seven, appellants argue that the trial court erred in granting ESCO's motion for summary judgment. Before addressing the merits of appellants' seventh point of error, it is necessary to explain how ESCO became a party to this suit. John B. Turner & Son, Inc. (Turner), manufactured the embalming machine. Conrac Corporation purchased Turner and made it the Turner division of Conrac. ESCO purchased the Turner division from Conrac. Appellants assert that they may sue ESCO as the successor corporation to Turner. ESCO filed a motion for summary judgment, and the trial court granted it.
        Summary judgment is proper only where the movant has shown that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) (per curiam); TEX. R. CIV. P. 166a(c). The court will take the evidence favorable to the nonmovant as true, will indulge every reasonable inference in favor of the nonmovant, and will resolve all doubts in favor of the nonmovant. MMP, Ltd., 710 S.W.2d at 60.
Summary Judgment Record
        Appellants argue that ESCO relied on the purchase agreement between Conrac and ESCO in which Conrac agreed to indemnify ESCO for all liabilities that arose before the sale of the business. Appellants argue that the purchase agreement was not part of the summary judgment record, because ESCO did not attach the purchase agreement to the motion for summary judgment. Appellants admit that ESCO attached the purchase agreement to their interrogatories and requests for production of documents; however, appellants assert that ESCO cannot use its own answers to discovery to support its case, because only the party submitting the interrogatories and requests for admissions can use the answers thereto. See Jeffrey v. Larry Plotnick Co., 532 S.W.2d 99, 102 (Tex. Civ. App.--Dallas 1975, no writ). The rule upon which appellants rely applies only to answers to requests for admissions and interrogatories. Id.; Sympson v. Mor-Win Products, Inc., 501 S.W.2d 362, 364 (Tex. Civ. App.--Fort Worth 1973, no writ). The rule is designed to preclude a party from introducing self-serving responses into evidence. Sympson, 501 S.W.2d at 364. The purchase agreement was not provided in response to a request for admission or an interrogatory. Rather, the purchase agreement was produced in response to appellants' request for production of documents. TEX. R. CIV. P. 167. Rule 167 does not restrict the use of documents produced pursuant to a request for production. Appellants have not directed us to any case law that supports their position. Appellants have not explained why the policy reasons behind restricting the use of self-serving answers to requests for admissions and interrogatories would apply to documents produced under rule 167. As a discovery response referred to in ESCO's motion for summary judgment, the purchase agreement was part of the summary judgment record. See TEX. R. CIV. P. 166a(c).
Application of New York Law
        Appellants contend that New York law applies to the purchase agreement and that under New York law, appellants can sue ESCO. Grant-Howard Assoc. v. General Housewares Corp., 63 N.Y.2d 291, 472 N.E.2d 1, 482 N.Y.S.2d 225 (N.Y. 1984); Schumacher v. Richards Shear Co. 59 N.Y.2d 239, 451 N.E.2d 195, 464 N.Y.S.2d 437 (N.Y. 1983). Appellants assert that New York law applies because of paragraph 22 of the purchase agreement, which provides: "This Agreement shall be governed by, and construed and enforced in accordance with, and subject to, the laws of the State of New York." This provision merely states that any dispute regarding Conrac's sale of the Turner division to ESCO will be governed by New York law. Appellants are not suing on the basis of the purchase agreement; appellants are not even a party to the purchase agreement. Appellants did not sue ESCO or Conrac to have the purchase agreement construed pursuant to New York, Texas, or any other state's law. Appellants sued ESCO in Texas for indemnity arising out of tort liability. Whether appellants can sue ESCO under Texas tort law is a question determined by Texas law. Assuming appellants can sue ESCO and assuming a trial court finds ESCO liable to appellants, ESCO's rights to indemnity as to Conrac would be governed by the purchase agreement as construed pursuant to New York law. Appellants' contention that New York law applies to whether they can sue ESCO in Texas for indemnity for tort liability is without merit.
Application of Texas Law
        ESCO argues that article 5.10(b) of the Texas Business Corporation Act supports the trial court's summary judgment. Appellants assert that ESCO purchased the Turner division in 1975, that article 5.10(b) was not enacted until 1979, and that article 5.10(b) was not retroactive. Appellants contend that the present case is governed by Western Resources Life Insurance Company v. Gerhardt, 553 S.W.2d 783 (Tex. Civ. App.--1977, writ ref'd n.r.e.), and that, under Western Resources, appellants may sue ESCO. Assuming, without deciding, that Western Resources applies to this case, we are not persuaded that Western Resources would allow appellants to recover against ESCO.
        The court in Western Resources said that, as a general rule, a corporation that purchases assets from another corporation is not liable for liabilities arising from the tortious conduct of the transferring corporation. Western Resources, 553 S.W.2d at 786. However, the court listed five exceptions: (1) where the purchaser expressly or impliedly assumes debt; (2) the selling and purchasing corporations consolidate or merge; (3) the purchasing corporation is merely a continuation of the selling corporation; (4) the transaction is fraudulently entered into in order to escape liabilities; and (5) the purchasing corporation did not pay adequate consideration for the sale or transfer. Id.; see also Grant-Howard Assoc., 472 N.E.2d at 3; Schumacher, 451 N.E.2d at 198. The third exception, the continuation exception, refers to a corporate reorganization where only one corporation survives the transaction; the selling corporation must be extinguished. Western Resources, 553 S.W.2d at 786; Schumacher, 451 N.E.2d at 198. Regarding the second and third exceptions, the court in Grant-Howard Associates said:
            The second and third [exceptions] are based on the concept that a successor that effectively takes over a company in its entirety should carry the predecessor's liabilities as a concomitant to the benefits it derives from the good will purchased. This is consistent with the desire to ensure that a source remains to pay for the victim's injuries.
Grant-Howard Assoc., 472 N.E.2d at 3 (emphasis added).
        The first exception does not apply because ESCO did not expressly or impliedly assume liability for torts arising before its purchase of the Turner division; just the contrary, the purchase agreement gave ESCO the right of indemnification against Conrac for any tort liability arising before ESCO's purchase of the Turner division. The second exception does not apply because ESCO and Conrac did not consolidate or merge; rather, Conrac merely sold one of its divisions, the Turner division, to ESCO. The third exception does not apply because Conrac, the selling corporation, survived. Western Resources, 553 S.W.2d at 786; Schumacher, 451 N.E.2d at 198. Nothing in appellants' brief suggests that Conrac fraudulently sold the Turner division to ESCO in order to escape tort liabilities; accordingly, the fourth exception does not apply. Appellants also do not argue that ESCO paid Conrac inadequate consideration for the Turner division. Because appellants do not argue that Conrac is not a viable defendant, the purpose behind the exceptions--to insure that a victim has a source capable of paying for the victim's injuries--is not frustrated. We hold that even under Western Resources, appellants were not entitled to recover an indemnity against ESCO.
 
Liability for Purchase Orders
        In regard to the first exception, appellants argue that ESCO has not conclusively shown that it did not expressly assume the liability in question. Appellants maintain that section 2(b) of the purchase agreement provides:
            Buyer [ESCO] will assume and undertake to perform and pay all of such contracts, obligations and liabilities of the Turner Porti-Boy Business [the Turner division] with respect to the contracts listed in Schedule 3 and as arise out of accepted but unfilled orders and supplies ordered but undelivered, existing or incurred on or prior to the closing date.
Appellants point out that the liability assumed by ESCO pursuant to Schedule 3 includes "copies of outstanding purchase orders for PORTI-BOY product line parts and materials." Appellants argue that because ESCO no longer possesses these purchase orders, a fact issue exists as to whether Southland's embalming machine was among those orders. The evidence shows that appellants purchased their assets from two funeral homes in 1966. ESCO purchased the Turner division in 1975. As a matter of law, the evidence conclusively shows that appellants' embalming machine was not among the purchase orders in 1975.
Implied Assumption
        Appellants argue that paragraphs 2(b), 8(b), and 13 of the purchase agreement create a fact issue as to whether ESCO impliedly assumed the liabilities of Conrac; therefore, summary judgment was improper. Paragraph 2(b) is quoted in the preceding section. Paragraph 8(b) states: "Buyer acknowledges that it has inspected the machinery and equipment listed in Schedule 1 hereto and the inventory referred to in paragraph 1(b) hereof and that it is purchasing the same on an 'as is' basis." Paragraph 13 states:
            
Servicing of Product Warranties
                    Buyer undertakes to service and perform all obligations and responsibilities of Conrac relating to claims under Standard Product Warranties (copies of which are attached hereto as Schedule 4) made by Conrac with respect to embalming pumps manufactured and sold in its Turner Porti-Boy Business. Upon receipt of appropriate receipts or other documentation, Conrac will reimburse Buyer for its costs and expenses in the performance of such service, provided, however, that:
 
                    (a) Conrac shall be liable under the foregoing paragraph only to the extent that the Buyer's costs and expenses to which the foregoing obligation is related do not exceed an aggregate of $5,000; and
 
                    (b) Conrac shall have received written notice of such costs and expenses within 30 days after the performance of such service.
For the reasons given below, as a matter of law, these provisions do not create a question of fact as to whether ESCO impliedly assumed the liabilities of Conrac.
        Because paragraph 2(b) applies to contracts listed on Schedule 3 and purchase orders undelivered, existing, or incurred on or prior to the closing date in 1975, and because we earlier determined that appellants' embalming machine was not among the contracts listed on Schedule 3 or among the purchase orders undelivered, existing, or incurred on or prior to the closing date, paragraph 2(b) has no bearing whatsoever on appellants' embalming machine and, therefore, does not impliedly show that ESCO assumed Conrac's tort liabilities. Similarly, because appellants' embalming machine is not listed in Schedule 1 or referred to in paragraph 1(b), paragraph 8(b) has no bearing on the embalming machine in issue and does not illustrate that ESCO impliedly assumed Conrac's tort liabilities. Paragraph 13 addresses product warranties, and product warranties have nothing to do with whether ESCO impliedly assumed Conrac's tort liabilities; paragraph 13 is no evidence that ESCO impliedly assumed Conrac's tort liabilities. Finally, paragraph 7(d) provides in pertinent part:
            Conrac agrees to indemnify and hold [ESCO] harmless from any and all loss or damage as a result of any such obligations and liabilities arising out of the conduct of said business [that is, the Turner division] prior to the Closing Date, unless expressly assumed by [ESCO] under the terms of this Agreement.
(Emphasis added.) Because the liability, if any, arising out of the embalming machine arose out of the conduct of the Turner division before the closing date in 1975, and because ESCO did not expressly assume liability for defective embalming machines sold before the closing date elsewhere in the purchase agreement, we hold that the purchase agreement expressly allocates the liability for defective embalming machines sold years before the closing date in 1975 to Conrac, not ESCO; therefore, there is no fact issue as to whether ESCO impliedly assumed the potential liabilities of Conrac at issue in this case.
 
Failure to Warn
        Appellants contend that the trial court erred granting summary judgment in ESCO's favor because ESCO may be a joint tortfeasor in that ESCO failed to warn both Rusk and appellants about the dangerous condition of the embalming machine. Because ESCO neither manufactured nor sold the embalming machine in question, the duty to warn never attached to ESCO. Appellants' contention is without merit.
        None of the arguments asserted by appellants have shown how the trial court erred in granting ESCO's motion for summary judgment. Appellant's seventh point of error is overruled.
 
POINT OF ERROR EIGHT
        In point of error eight, appellants argue that the trial court erred in refusing to allow them to add third party defendants Cedar Memorial Funeral Home, John B. Turner & Sons, Inc., and Conrac Corporation. Rule 38 of the Texas Rules of Civil Procedure provides in pertinent part:
                     RULE 38. THIRD-PARTY PRACTICE
 
                    (a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a citation and petition to be served upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third-party petition not later than thirty (30) days after he serves his original answer. Otherwise, he must obtain leave on motion upon notice to all parties to the action.
TEX. R. CIV. P. 38. Rule 37 states:
                     RULE 37. ADDITIONAL PARTIES
 
                    Before a case is called for trial, additional parties, necessary or proper parties to the suit, may be brought in, either by the plaintiff or the defendant, upon such terms as the court may prescribe; but not at a time nor in a manner to unreasonably delay the trial of the case.
TEX. R. CIV. P. 37. Rule 39 states in pertinent part: "JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION (a) Persons to be Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties. . . ." TEX. R. CIV. P. 39(a)(1). The Texas Supreme Court has said: "Subdivision (a) provides that certain persons 'shall be joined,' but there is no arbitrary standard or precise formula for determining whether a particular person falls within its provisions." Cooper v. Texas Gulf Indus., Inc., 513 S.W.2d 200, 204 (Tex. 1974). The standard of review is whether the trial court abused its discretion. Valley Indus., Inc. v. Martin, 735 S.W.2d 720, 721 (Tex. App.--Dallas 1987, no writ).
        Rusk filed his original petition on July 29, 1985, against Southland, which filed an original answer on August 21, 1985. Rusk filed his first amended petition against Southland, Bean, Burge, Massey, and Geissner on August 22, 1986, and the above five defendants filed their first amended original answer on September 22, 1986. The trial court set the case for trial on the merits for November 30, 1987, and appellants filed their motion to bring in the third party defendants on August 26, 1987, approximately ninety days before trial.
        The absence of the third party defendants did not hinder the trial court's ability to resolve the dispute as between Rusk and his chosen defendants, appellants herein. See Cooper, 513 S.W.2d at 201-05. Appellants failed to file their third party petition within thirty days after serving their original answers; therefore, they needed leave of court. TEX. R. CIV. P. 38(a). Southland waited nearly two years after filing its original answer, and Bean, Burge, Massey, and Geissner waited nearly one year after filing their original answer before filing a motion to bring in third party defendants. All the appellants waited until approximately three months before trial to assert their motion. Because the inclusion of the third party defendants may have unreasonably delayed Rusk's trial of the case, we hold that the trial court did not abuse its discretion by denying appellants' motion for leave to file a third party action. TEX. R. CIV. P. 37. Appellants' eighth point of error is overruled.
POINTS OF ERROR NINE THROUGH TWELVE
        Appellants argue in their ninth through twelfth points of error that the trial court erred in refusing to allow them to amend their pleadings during trial to include (9) unavoidable accident, (10) preexisting condition, (11) manufacturer's negligence, and (12) Rusk's self-inflicted injury when Rusk failed to object to any of the amendments. See Bell v. Meeks, 725 S.W.2d 179 passim (Tex. 1987). A trial court's denial of a trial amendment may not be overturned except upon a showing of an abuse of discretion. Missouri-Kansas-Texas Rd. Co. v. Alvarez, 703 S.W.2d 367, 370 (Tex. App.--Austin 1986, writ ref'd n.r.e.). The trial court can consider the diligence of the party offering the trial amendment. Id. Because appellants waited until trial before offering the amendments, the trial court could have reasoned that appellants failed to exercise due diligence. We cannot say that the trial court abused its discretion. Appellants' ninth through twelfth points of error are overruled.
POINT OF ERROR THIRTEEN
        In point of error thirteen, appellants assert that the trial court erred in excluding Rusk's prior medical and military history. Appellants assert that they attempted to introduce evidence that Rusk underwent electro-shock treatments, that Rusk had an emotionally unstable personality, that Rusk used LSD, that Rusk had prior hospitalizations, medical problems, and claims for benefits, that Rusk lied to the Marine Corp, and that Rusk had marital difficulties and depression. Appellants also assert that Rusk had previously fabricated a job injury as part of a scheme to defraud his previous employers, but appellants do not point out in the record where there is such evidence to support such an allegation.
        Appellants argue that the evidence is admissible to impeach the credibility of Rusk's testimony. "Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime . . . , may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence." TEX. R. CIV. EVID. 608(b). Appellants' argument is without merit.
        Appellants maintain that the trial court erred in granting Rusk's motion in limine to exclude the above evidence. A trial court does not commit reversible error by sustaining a motion in limine that requires a party to notify the court and opposing counsel out of the presence of the jury of his intention to offer certain evidence in order that counsel may make his objection in the jury's absence. City of Corpus Christi v. Nemec, 404 S.W.2d 834, 836 (Tex. Civ. App.--Corpus Christi 1966, no writ).
        Appellants contend that the evidence is admissible to show Rusk's mental condition in that all witnesses must possess some minimal degree of ability to observe, recollect, and narrate. This contention goes to the competency of Rusk to testify. "Every person is competent to be a witness except as otherwise provided in these rules. The following witnesses shall be incompetent to testify in any proceeding subject to these rules: (1) Insane Persons. . . . (2) Children. . . ." TEX. R. CIV. EVID. 601(a)(1) & (2) (emphasis original). Appellants do not argue that Rusk was insane or a child; therefore, Rusk was competent to testify. Appellants' argument is without merit.
        Appellants maintain that the evidence was admissible under rule 404(b) of the Texas Rules of Civil Evidence in order to show Rusk's motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Appellants assert that the excluded evidence shows Rusk's plan to defraud his employers. With the exception of appellants' allegation that Rusk previously fabricated a job injury as part of a scheme to defraud his previous employers, the other evidence is not relevant to the issue of whether Rusk attempted to defraud appellants, or, to the extent it is relevant, the trial court could have concluded that its probative value was substantially outweighed by the danger of unfair prejudice. TEX. R. CIV. EVID. 403. Accordingly, appellants' argument is without merit.
        Appellants further argue that the evidence was admissible to show a trait of Rusk's character that was an essential element of a claim or defense pursuant to rule 405(b) of the Texas Rules of Civil Evidence. Appellants assert that Rusk's "untruthfulness and predisposition towards fraud" were an essential part of their defense. Appellants' first amended original answer does not allege that Rusk was attempting to defraud them; rather, appellants' answer asserts a general denial; asserts that because Rusk knew the nature and extent of appellants' insurance program Rusk was barred from any recovery; and alleges that Rusk was negligent. Because appellants did not plead fraud as an affirmative defense, the trial court properly excluded any evidence pertaining to that issue as irrelevant. TEX. R. CIV. P. 94; TEX. R. CIV. EVID. 402. Appellants' contention is without merit. Appellants' thirteenth point of error is overruled.
POINT OF ERROR FOURTEEN
        Appellant's assert that the trial court erred in refusing to allow them to present certain testimony from Malcolm Stewart because Stewart's testimony was not hearsay and was relevant to the jury determinations. A review of the statement of facts reveals that Stewart's testimony was not excluded because it was hearsay and irrelevant but because appellants failed to designate Stewart as a witness and because good cause did not exist to allow Stewart to testify. TEX. R. CIV. P. 215(5). Appellants fourteenth point of error is overruled.
 
POINT OF ERROR FIFTEEN
        Appellants contend that the trial court erred in refusing to allow Kurt Heebner to give certain testimony because the excluded testimony was not hearsay and was relevant to the jury determinations. During an offer of proof, Heebner testified that he heard tapes recorded by Rusk of conversations between Rusk and his wife and that on these tapes Rusk's wife became very distraught because of the things Rusk was saying to her. Heebner also testified about an instance when Rusk misrepresented to his wife the date of a custody hearing and thereby obtained custody of the couple's children. This testimony relates to a specific instance of conduct that appellants attempted to use to attack the credibility of Rusk; as specific instances of conduct, the trial court properly excluded this testimony. TEX. R. CIV. EVID. 608(b). Furthermore, to the extent this testimony was relevant, the trial court could have determined that its probative value was substantially outweighed by the danger of unfair prejudice. TEX. R. CIV. EVID. 403. Appellants' fifteenth point of error is overruled.
POINT OF ERROR SIXTEEN
        Appellants maintain that the trial court erred in refusing to allow Melanie Rusk, Rusk's wife, to give certain testimony because such testimony was not hearsay and was relevant to jury determinations. Melanie testified during an offer of proof that someone had told her that Rusk had taped their conversations before their separation. Appellants argue that this testimony shows Rusk's propensity for fraud. This testimony relates to a specific instance of conduct and was properly excluded pursuant to rule 608(b) of the Texas Rules of Civil Evidence. To the extent this testimony is relevant, the trial court may have determined that its probative value was substantially outweighed by the danger of unfair prejudice. TEX. R. CIV. EVID. 403. Appellant's sixteenth point of error is overruled.
 
POINT OF ERROR SEVENTEEN
        Appellants argue that the trial court erred in refusing to allow Massey to testify before the jury regarding certain matters because Massey's testimony was not hearsay and was relevant to jury determinations. Massey testified during an offer of proof that Rusk told him that Rusk intended to use the tapes as evidence in Rusk's divorce in order to get custody of Rusk's children. Massey further testified that Rusk bragged about how he tricked his wife into not appearing at the custody hearing. Massey also testified as to Rusk's mental state regarding Rusk's divorce. To the extent the above evidence is relevant to Rusk's action for damages resulting from injuries sustained by appellants' embalming machine, the trial court could have determined that the probative value of Massey's testimony was substantially outweighed by the danger of unfair prejudice. TEX. R. CIV. EVID. 403. Appellants' seventeenth point of error is overruled.
POINT OF ERROR EIGHTEEN
        Appellants maintain that the trial court erred in refusing to allow them to present to the jury certain testimony of Bean because Bean's testimony was not hearsay and was relevant to jury determinations. Appellants assert that during an offer of proof, Bean testified that Rusk cancelled his own insurance policy. Appellants also argue that the trial court erred in excluding a letter from appellants' insurance company, which, according to appellants, verifies that Rusk cancelled the insurance policy. Our review of Bean's testimony contradicts appellants' allegations. Bean testified that the letter accurately stated that the insurance company terminated Rusk's hospitalization benefits that were offered by Southland's hospitalization policy. The letter itself indicates that Southland argued that Rusk was a corporate officer who was not required to have workmen's compensation insurance and that both Rusk and his wife contacted the insurance company and denied that Rusk was a corporate officer. The letter specifically states that the insurance company denied Southland's claims resulting from Rusk's injuries because those injuries arose out of the course of Rusk's employment. Because appellants' characterization of the facts is unsupported by the evidence they cite in support of their allegations, we hold that appellants' arguments are without merit and overrule their eighteenth point of error. See TEX. R. APP. P. 74(f)(1).
 
POINT OF ERROR NINETEEN
        Appellants contend that the trial court erred in refusing to permit them to present to the jury certain testimony of David Hooper because the excluded testimony was not hearsay and was relevant to the jury determinations. Hooper testified that Rusk had a reputation for being very untruthful, that Rusk had a bad work attitude, that Rusk "got a big kick out of" upsetting Bean by leaving the embalming doors open, leaving bodies uncovered, and leaving the embalming room in disarray. Hooper explained that Bean was a "stickler" for neatness. Hooper testified that on one occasion Rusk wanted to double stack two bodies, and when Hooper refused, Rusk became upset, kicked in a door, and threatened to kill his coworkers.
        Hooper's testimony regarding Rusk's reputation for untruthfulness was admissible. TEX. R. CIV. EVID. 608(a). However, Tommy Bower testified before the jury that his opinion as to Rusk's truthfulness or untruthfulness was that Rusk was not very truthful. This Court is not of the opinion that the exclusion of this one witness's testimony regarding Rusk's reputation for untruthfulness amounted to such a denial of the rights of appellants as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. TEX. R. APP. P. 81(b)(1). The other testimony was properly excluded because the testimony addressed specific instances of misconduct. TEX. R. CIV. EVID. 608(b). To the extent, if any, that Hooper's testimony was relevant to the issues before the trial court, the trial court properly excluded the evidence because its probative value was substantially outweighed by the danger of unfair prejudice. TEX. R. CIV. EVID. 403. Appellants' nineteenth point of error is overruled.
POINT OF ERROR TWENTY
        Appellants maintain that the trial court erred in refusing to allow them to present to the jury certain testimony of Tommy Bowers because such testimony was not hearsay and was relevant to the jury determinations. Appellants complain that Bowers should have been allowed to testify before the jury that Rusk faked an injury to recover benefits from his prior employer, that Rusk cancelled his hospitalization insurance because Rusk felt that Southland should pay for his damages, that Rusk told Bowers that Rusk was going to own Southland, and that Rusk told Bowers that Rusk had faked an injury in order to recover workers' compensation insurance from his previous employer.
        Our review of the statement of facts shows that Bowers testified before the jury that Rusk faked an injury during his previous employment. Bowers answered this question before Rusk objected, and even though the trial court sustained the objection, Rusk did not ask the court to instruct the jury to disregard Bowers's answer. The answer was before the jury.
        The statement of facts also shows that Bowers testified before the jury that Rusk told him that Rusk informed the insurance company to stop paying his medical bills because Rusk was hurt on the job and that Southland should be liable for those bills and that when Rusk went to court, Rusk thought that this would probably help Rusk's damages. This testimony was before the jury.
        Regarding the alleged statement by Rusk that if he won the lawsuit, he was going to own Southland, assuming it is relevant, the trial court properly excluded it because its probative value was substantially outweighed by the danger of unfair prejudice. TEX. R. CIV. EVID. 403. Assuming this statement were admissible, its exclusion did not amount to such a denial of the rights of appellants as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this case. TEX. R. APP. P. 81(b)(1). Appellants' twentieth point of error is overruled.
POINT OF ERROR TWENTY-ONE
        Appellants contend that the trial court erred in refusing to allow them to present to the jury certain testimony of Doug Lewis because his testimony was not hearsay and was relevant to the jury determinations. Lewis testified during an offer of proof that Rusk had faked an injury. Because Bowers testified before the jury that Rusk had faked an injury, Lewis's testimony was cumulative. The exclusion of this evidence does not amount to such a denial of the rights of appellants as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. TEX. R. APP. P. 81(b)(1). Appellants' twenty-first point of error is overruled.
POINT OF ERROR TWENTY-TWO
        Appellants assert that the trial court erred in failing to instruct the jury on their right to an offset against the judgment for amounts already paid to Rusk. Appellants' brief fails to direct this Court to where in the record they submitted an instruction in substantially correct form. Appellants' twenty-second point of error is overruled. TEX. R. CIV. P. 278; TEX. R. APP. P. 74(d).
 
POINT OF ERROR TWENTY-THREE
        Appellants argue that the trial court erred in refusing to submit issues to the jury on the manufacturer's negligence. The manufacturer of the embalming machine is a third party that was not brought into the suit. Appellants argue that the negligence of a third party, such as the manufacturer, is a complete defense. Appellants cite no authority for this legal proposition. Rule 74(f)(2) of the Texas Rules of Appellate Procedure provides in pertinent part: "The argument shall include . . . the authorities relied upon as may be requisite to maintain the point at issue." TEX. R. APP. P. 74(f)(2) (emphasis added). Whether the negligence of a third party not present before the court is a complete defense is the crux of appellants' twenty-third point of error. Failure to cite any authority whatsoever for the proposition results in appellants' failure "to maintain the point at issue." See Nolan v Bettis, 577 S.W.2d 551, 556 (Tex. Civ. App.--Austin 1979, writ ref'd n.r.e.); TEX. R. APP. P. 74(f)(2). Appellants' twenty-third point of error is overruled.
POINT OF ERROR TWENTY-FOUR
        Appellants contend that the trial court erred in refusing to submit an issue to the jury on the issue of whether Rusk's injuries were self-inflicted. Appellants point to the following evidence in support of the submission of this issue: Becky Downs once saw on Rusk's desk an open book that contained a picture of an electrocuted man, and the words, "Effects of electrocution," were on the page. Doctor Robert Stewart admitted that a person could intentionally or negligently touch connections to an electric motor and shock himself. When asked whether he suspected Rusk's failure to move his extremities was voluntary, Doctor Charles Tuen answered: "I would only say that I do not have an objective finding to support his weakness." Appellants admit that they did not plead "[t]hese grounds of recovery." However, appellants apparently assert that the above evidence shows that the issue was tried by consent, and, therefore, appellants argue that the trial court erred in not allowing appellants to amend their pleadings.
        In point of error twelve, we held that the trial court did not abuse its discretion by not allowing appellants to amend their pleadings to include the defense of self-inflicted injury. Even assuming that the evidence cited by appellants constitutes some evidence that Rusk's injuries were self-inflicted, because appellants' pleadings do not support this issue, the trial court properly refused appellants' jury question. Blasberg v. Cockerell, 254 S.W.2d 1012, 1014 (Tex. Civ. App.--Amarillo 1952, writ ref'd n.r.e.).
        Appellants contend that the trial court found that the evidence was supported by the pleadings and, therefore, did not require a trial amendment. Appellants do not support this allegation with a citation to the record. Appellants argue that the evidence and pleadings support the submission of their question regarding self-inflicted injury. The evidence in question is within the pleadings, but we hold that it is no evidence that Rusk's injuries were self-inflicted. That a book on electrocution was on Rusk's desk is no evidence that Rusk's injuries were self-inflicted. That a person could intentionally or negligently touch connections to an electric motor and shock himself is no evidence that Rusk intentionally or negligently touched connections to an electric motor and shocked himself. Doctor Tuen's testimony that he had no objective findings to support Rusk's weakness is no evidence that Rusk's injuries were self-inflicted. Appellants' twenty-fourth point of error is overruled.
POINT OF ERROR TWENTY-FIVE
        Appellants contend that there was no evidence to support the jury's affirmative answers to special issues 2, 2A, and 2B, which asked whether Southland failed to furnish Rusk reasonably safe equipment, whether such failure was negligence, and whether such failure was a proximate cause of the occurrence in question. When determining a no evidence point of error, courts consider only that evidence which supports the finding and then in its most favorable light. Holsworth, 632 S.W.2d at 644.
        Appellants point out that John Stewart testified that the embalming machine performed properly with no evidence of any malfunction; however, Stewart also testified that using a machine such as an embalming machine that holds water and that is being used in a wet environment without having the machine solidly grounded would be very dangerous to the users of the machine and to persons working near the machine. Appellants point to testimony that suggests that the embalming machine may not have caused the accident but some other machine may have caused it. Massey admitted being shocked "on some of these machines." Burge admitted that before the accident Geissner had told him that Rusk had told Geissner that the machine had arced. Jim Gaddie, who worked part time for Southland, said that once when he turned on one of the embalming machines, it blew a plug out of the wall and shorted out completely. Gaddie testified that he had experienced electrical shocks from one of the embalming machines on several occasions, that workers verbally told management about the problem, and that they even left management notes about it. Charlie Sturgeon testified that in the spring of 1984, while embalming a body at Southland, he heard a loud popping noise and saw a blue spark fly out and enter his arm. Sturgeon said that a note regarding the incident was left in the office and that he and Rusk talked to Massey about it the next day. Rusk testified that on one other occasion he was shocked by one of the machines.
        Jury question 2 asked whether Southland furnished Rusk reasonably safe equipment, not whether one particular embalming machine was reasonably safe. The above evidence amply supports the jury findings. Appellants' twenty-fifth point of error is overruled.
 
POINT OF ERROR TWENTY-SIX
        Appellants assert that there was insufficient evidence to support the jury's affirmative answers to jury questions 2, 2A, and 2B. When determining factual insufficiency points, courts consider and weigh all the evidence in the record to determine whether it supports the judgment. Holsworth, 632 S.W.2d at 644. Only if the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust will the findings be set aside. In re King's Estate, 244 S.W.2d at 661. Because the discussion of the evidence under point of error twenty-five encompasses the extent of the evidence contrary to the jury findings, we rely upon the facts discussed therein. The evidence shows that workers had been shocked before Rusk's accident, that workers had notified Southland both verbally and in writing on more than one occasion, and that Rusk was thereafter shocked and injured by one of Southland's machines. We hold that the jury findings are not so against the great weight and preponderance of the evidence as to be manifestly unjust. Appellants' twenty-sixth point of error is overruled.
POINT OF ERROR TWENTY-SEVEN
        Appellants maintain that the trial court erred in failing to instruct the jury not to award damages for injuries arising from conditions that were not the result of Rusk's accident at Southland. Appellants emphasize that Rusk was diagnosed as emotionally unstable, had taken LDS, had been hospitalized for depression, and had received electro-shock therapy.
        The jury question in dispute states: "What sum of money, if paid now in cash, would fairly and reasonably compensate Dan M. Rusk for his injuries, if any, that resulted from the occurrence in question?" (Emphasis added.) Appellants' proposed instruction reads: "Do not include any amount for any condition not resulting from the occurrence in question." (Emphasis original.) Appellants' second instruction states: "Do not include any amount for any condition existing before the occurrence in question, except to the extent, if any, that such other condition was aggravated by any injuries that resulted from the occurrence in question." The trial court's jury question adequately limited the jury's consideration; furthermore, appellants' requested instructions were merely repetitious. See Linden-Alimak, Inc. v. McDonald, 745 S.W.2d 82, 86 (Tex. App.--Fort Worth 1988, writ denied). Appellants' twenty-seventh point of error is overruled.
POINT OF ERROR TWENTY-EIGHT
        Appellants argue that the trial court erred in submitting jury question one because there was no evidence to support the jury's finding that Rusk received an injury from the incident in question. No evidence points of error are determined by considering only that evidence which supports the finding and then in its most favorable light. Holsworth, 632 S.W.2d at 644.
        Kurt Heebner, who was working with Rusk at the time of the accident, testified that he heard a muffled pop. Heebner observed Rusk leaning against a counter and heard Rusk say, "I am going to be sick." Heebner saw a singed area on the right side of Rusk's hair and on Rusk's mustache. Heebner said that Rusk then went to the floor on one knee, kneeled, sat down, and said again that he was going to be sick. Doctor Richard Frank Morrison testified that Rusk had a profound left-sided weakness and left side sensory loss that was "compatible" with an electrical injury. Doctor Morrison said that Rusk had a hearing loss in his left ear and some problems with short term memory, and that those injuries were consistent with an electrical injury. This evidence, when viewed in its most favorable light to the jury finding, provides some evidence to support the jury's answer to jury question one. Appellants' twenty-eighth point of error is overruled.
POINT OF ERROR TWENTY-NINE
        Appellants argue that the trial court erred in entering judgment against them because there was insufficient evidence to support the jury's finding to jury question one, because there was uncontroverted evidence that Rusk received no injury on the day in question. Courts consider and weigh all the evidence in the record to determine whether the evidence is factually insufficient to support the jury findings. Holsworth, 632 S.W.2d at 644. Only if the jury findings are so against the great weight and preponderance of the evidence as to be manifestly unjust will a court set aside the jury findings. In re King's Estate, 244 S.W.2d at 661.
        Appellants point to evidence in the record that suggests that Rusk was not injured. Appellants ignore Doctor Morrison's and Rusk's testimony. The evidence regarding whether Rusk was injured was, therefore, conflicting. We hold that the jury finding to question one was not so against the great weight and preponderance of the evidence as to be manifestly unjust. Appellants' twenty-ninth point of error is overruled.
POINT OF ERROR THIRTY
        Appellants assert that the trial court erred in failing to instruct the jury not to find against them if Rusk's injuries were the result of an unavoidable accident. In point of error nine, we held that the trial court did not abuse its discretion by refusing to allow appellants to amend their pleadings at trial to include unavoidable accident. Absent pleadings to support such an instruction, the trial court properly denied appellants' requested instruction on unavoidable accident. TEX. R. CIV. P. 278. Appellants' thirtieth point of error is overruled.
POINT OF ERROR THIRTY-ONE
        Appellants argue that the trial court erred in admitting evidence of their failure to have workers' compensation insurance. Appellants contend that such evidence is inadmissible under rule 411 of the Texas Rules of Civil Evidence, which prohibits the admission of evidence showing that a person was or was not insured against liability in order to show whether the person acted negligently or otherwise wrongfully. TEX. R. CIV. EVID. 411.
        Rusk's pleadings alleged that appellants contracted with him to pay all his medical expenses, including any amounts not covered by insurance, to continue full salary payments in the event of any injury at work, and to continue such salary and medical treatment for the duration of Rusk's inability to work. The evidence of appellants' failure to have workers' compensation insurance was admissible to show that appellants breached their contract to provide for Rusk's medical and salary needs in case of an injury. TEX. R. CIV. EVID. 402. We note that appellants did not request a limiting instruction. TEX. R. CIV. EVID. 105. Appellants' thirty-first point of error is overruled.
POINT OF ERROR THIRTY-TWO
        Appellants contend that the trial court erred in admitting evidence of corporate records back to 1965. Appellants argue that the records are totally irrelevant, TEX. R. CIV. EVID. 402, and that their prejudicial value outweighed their probative value. TEX. R. CIV. EVID. 403. The statement of facts shows that appellants originally objected to testimony regarding the records on the basis that the information was too remote in time to be relevant. The trial court also granted appellants a continuing objection regarding the records. However, subsequently when Rusk attempted to admit the records into evidence, appellants specifically stated that they had no objection, and the trial court admitted the records into evidence. Absent a timely objection, appellants have waived their complaint. TEX. R. APP. P. 52(a). Appellants' thirty-second point of error is overruled.
CROSS-POINT
        Pursuant to rule 84 of the Texas Rules of Appellate Procedure, Rusk argues that appellants had no good faith, legitimate, or probable cause for appealing the trial court's judgment and that appellants appealed the judgment for purposes of delay only. Because we have sustained one of appellants' points of error, we decline to assess a penalty against appellants. Rusk's cross-point is overruled.
CONCLUSION
        The judgment of the trial court against Geissner individually is reversed, and judgment is rendered that Rusk take nothing against Geissner individually. The judgment of the trial court is in all other respects affirmed.
 
 
 
                                                          
                                                          ED KINKEADE
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
88-00846.F
 
 
File Date[01-02-89]
File Name[880846]