Court of Appeals of Texas, Dallas.

AETNA CASUALTY & SURETY COMPANY, Appellant,

v.

Connie A. Brooks HILL, Appellee.

No. 05-91-01290-CV.

|

July 21, 1992.

O P I N I O N

LAGARDE, Justice.

*1 This is an appeal of a jury’s verdict in a workers’ compensation case brought by Connie Hill against Aetna Casualty and Surety Company. Hill alleged that her on-the-job injury was a producing cause of total and permanent loss of use of both hands at or above the wrists. The jury found that Hill’s injury was a producing cause of total and permanent loss of use. The trial court entered judgment awarding Hill a lump sum payment which represented future weekly compensation. Aetna appeals, contending that the trial court erred (1) by refusing to allow Aetna to introduce evidence of Hill’s pleadings in another case and (2) in taking judicial notice of a life table. We affirm.

Pleadings from Car Accident Case

Hill’s on-the-job injury occurred on February 9, 1987. In March 1989, Hill was involved in a car accident. In December 1989, Hill filed a lawsuit seeking recovery for personal injuries from the car accident. In its first point, Aetna argues that the trial court erred in excluding Hill’s pleadings from that law suit. Aetna complains that those pleadings were admissible as proof that Hill was capable of securing and keeping employment following her on-the-job injury.¹ In order to preserve error regarding the exclusion of evidence, the complaining party must satisfy the following prerequisites: (1) the exhibit must be offered into evidence at trial; (2) the trial court must make a ruling excluding the evidence; and (3) the excluded evidence must be properly reflected in the record by bill of exception or offer of proof. TEX. R. APP. P. 52(a), (b).

Here, outside the presence of the jury, counsel for both sides discussed the admissibility of Hill’s pleadings. After Aetna argued that the pleadings were admissible as a judicial admission for impeachment purposes, the trial court asked:

THE COURT: What is the particular motion or objection before the court?

[AETNA]: Well, it’s my understanding-

THE COURT: That you all want to go on a cross-examination and impeach her with-

[AETNA]: With this document.

THE COURT: To which they object. The court sustains and instructs you not to go into it.

The record reflects that Aetna never offered Hill’s pleadings from the car accident case into evidence at trial. The “document” referred to was never marked, identified or offered into evidence. Moreover, the trial court did not make a ruling excluding the pleadings. Our reading of the excerpt above is that the trial court sustained an objection to testimony, not to a document offered into evidence. Consequently, Aetna has not preserved error regarding the exclusion of those pleadings.

*2 Assuming, arguendo, that Aetna offered Hill’s pleadings and the trial court ruled to exclude them, Aetna has waived its claim that the pleadings were admissible for impeachment or another limited purpose. At the conclusion of the witnesses’ testimony, Aetna made an offer of proof. It was at that point that the pleadings were marked, identified and offered as defense exhibit number one.

[AETNA]: We would offer Defendant’s Exhibit Number 1, and that’s our bill, Your Honor.

The pleadings were only offered generally. Aetna did not offer the pleadings for impeachment or any other limited purpose. When evidence which may be admissible for a limited purpose is excluded, such exclusion shall not be a ground for complaint on appeal unless the proponent expressly offers the evidence for its limited, admissible purpose. TEX. R. CIV. EVID. 105(b); see Worldwide Anesthesia v. Bryan Anesthesia, 765 S.W.2d 445, 449 (Tex. App.-Houston [14th Dist.] 1988, no writ); Powell v. Powell, 554 S.W.2d 850, 855 (Tex. App.-Tyler 1977, writ ref’d n.r.e.). We overrule Aetna’s first point.

Life Table

On April 24, 1991, approximately one month after the jury’s verdict, Hill filed a motion for judgment on the verdict. The trial court set a hearing on that motion for May 15, 1991. On May 10, 1991 Hill filed an amended motion for judgment and attached the life table which Aetna complains was erroneously considered. On May 30, 1991, the trial court held a hearing on Hill’s amended motion for judgment. At that time Aetna argued that the trial court could not take judicial notice of the life table post-verdict. Specifically, Aetna contended that the life table was controversial in nature and that life expectancy was a fact issue for the jury. The trial court disagreed and entered judgment based on the figures in the life table.² Aetna asserts that the trial court erred in taking judicial notice of the life table.

Rule 201 of the Texas Rules of Civil Evidence provides that a fact capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned is subject to judicial notice. TEX. R. CIV. EVID. 201(b)(2). The life table at issue here was the official life table published by the National Center for Health Statistics in Vital Statistics of the United States. 2 NATIONAL CENTER FOR HEALTH STATISTICS, VITAL STATISTICS OF THE UNITED STATES, 1987 § 6 (Life Tables, DHHS Publication No. (PHS) 90-1104; Statistical Bulletin July-Sep. 1990). We conclude that the life table was a proper subject for judicial notice. See City of Mesquite v. Moore, 800 S.W.2d 617, 619 (Tex. App.-Dallas 1990, no writ) (judicial notice of the official United States Department of Commerce Bureau of the Census estimates for population of City of Mesquite); Hernandez v. Houston Lighting & Power Co., 795 S.W.2d 775, 776-77 (Tex. App.-Houston [14th Dist.] 1990, no writ) (judicial notice of Electric Safety Code); McKibben v. McKibben, 567 S.W.2d 538, 539 (Tex. Civ. App.-San Antonio 1978, no writ) (judicial notice of life expectancy according to United States Department of Health, Education & Welfare Life Tables).³

*3 A court shall take judicial notice if requested by a party and supplied with the necessary information. TEX. R. CIV. EVID. 201(d). Here, Hill requested that the trial court take judicial notice and supplied the life table. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. TEX. R. CIV. EVID. 201(e). Twenty days after Hill filed her amended motion for judgment with the life table attached, the trial court held a hearing, on the record, in which Aetna had an opportunity to argue its opposition to the propriety of taking judicial notice. Aetna failed to demonstrate that the table was not subject to judicial notice. It only argued that rule 270 of the Texas Rules of Civil Procedure prevents the introduction of evidence of a controversial matter after the verdict. Aetna failed to show, however, how taking judicial notice of the life table was controversial. See TEX. R. CIV. P. 270. Aetna argued that mortality tables are not of themselves determinative of the life expectancy of a person and that other evidence should be considered. However, Aetna did not produce any other evidence for the trial court to consider. Therefore, there is no evidence to support Aetna’s claim. Judicial notice may be taken at any stage of the proceeding. TEX. R. CIV. EVID. 201(f). At the conclusion of that hearing, the trial court entered judgment based upon its judicial notice of the life table. We hold that the trial court correctly took judicial notice of the life table. We overrule Aetna’s second point and affirm the trial court’s judgment.

Do Not Publish

Tex. R. App. P. 90

	Footnotes
1		In her brief, Hill argues that Aetna’s first point is multifarious because it is unclear whether Aetna is complaining about the exclusion of testimony about the pleading or exclusion of the document itself. Later, she states that her review of the record indicates that Aetna is complaining only of the exclusion of the document itself. We agree.
2		Damages were not a jury issue because the parties stipulated to the amount of Hill’s weekly benefit. The only element for the trial court’s determination was Hill’s life expectancy.
3		The life-expectancy table is not excluded by the hearsay rule according to rule 803(17): “published compilations, generally used and relied upon by the public or by persons in particular occupations.” TEX. R. CIV. EVID. 803(17).