author: DENTON, Chief Justice.

text:
    Jimmy Ray WILLIAMS, Appellant, v. CIMARRON INSURANCE COMPANY, Inc., Appellee.
    No. 7561.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 14, 1966.
    Rehearing Denied March 14, 1966.

      Peery, Wilson & Jameson, Norman Whit-low, Wichita Falls, for appellant.
    L. W. Anderson, Dallas, for appellee.
   DENTON, Chief Justice.

This action was brought by Jimmy Ray Williams against Cimarron Insurance Company on an insurance policy seeking to recover medical, hospital, and funeral expenses under the medical payments provision of said policy. The trial court, without a jury, denied plaintiff’s recovery and he has perfected this appeal.

This case was submitted on stipulated facts. On July 4, 1964, appellant, accompanied by his wife and minor son, were spectators at a race track located on private property in Oklahoma when one of the stock car racers came through the fence and struck Mr. Williams, his wife and son. The patents sustained personal injuries and the minor son received fatal injuries. The race track was not a public highway or a public road. The stock car racer which struck the Williams family was a stripped-down 1947 Ford sedan with a 1954 Mercury motor, which had been modified by the owner approximately one year prior to the accident. The racer had no tail or head lights; no glass in the windows, and used screen wire as a windshield ; it had no horn or muffler; no rear or front bumper but had a safety bar in front of the radiator; it had no fenders or hood; it had heavy-duty tie rods and spindles and oversized tires; the speedometer cable was disconnected; it was not licensed in Oklahoma or any other state for operation on public roads or highways; and it was carried on a trailer to and from the race track or towed. The amount of the medical, hospital and funeral expenses incurred are stipulated and it was agreed that such charges were reasonable and necessary for the services rendered.

The sole question to be decided is not whether the stock car racer was an automobile, but whether it was an automobile as defined in the policy under the provision pertaining to “Automobile medical payments”. The medical provisions of the policy are as follows:

“Coverage C-Automobile Medical Payments
‘To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services:
# * * * * #
‘Division 2. To or for each insured who sustains bodily injury, sickness or disease, caused by accident, while in or upon or while entering into or alighting from, or through being struck by, an automobile.’
‘Automobile defined. * * *
‘Under division 2 of the coverage C, the word “automobile” means a land motor vehicle or trailer not operated on rails or crawler-treads, but does not mean: (1) a farm type tractor or other equipment designed for use principally off public roads, except while actually upon public roads. * * *

There appears to be no Texas case directly in point, however the case of Beagle v. Automobile Club Insurance Co., 176 N.E.2d 542 (Ohio Com.Pl.) has interpreted the exact insurance provisions under identical circumstances. The only material difference in the facts of the two cases is that in the Beagle case the spectator at the race track was struck by a wheel which disengaged itself from the racer while engaged in a race. The court held: “such disengaged wheel is an ‘automobile’ within the meaning of the policy, provided that the entire vehicle meets the test of the whole definition”. That question is not before us here as the vehicle itself struck appellant and his wife and son.

The Court in the Beagle case rejected the same contentions and arguments made by the insured in that case as are made here, and held the vehicle was not an automobile within the meaning of the definition of the policy. We are of the opinion that the Beagle case completely disposes of this case. The decision in that case can be summed up in the following language:

“This vehicle would therefore seem to be a land motor vehicle. However, the Exclusions clause specifically says the definition of such word ‘automobile’ does not mean a farm type tractor or other equipment designed for use principally off public roads, except while actually upon public roads. This injury did not occur upon a public road so such proviso is not applicable. It is not a farm type tractor so such exception is also not applicable. But, is it other equipment designed for use principally off public roads ? The Court thinks it is.
“Plaintiff, however, says the words ‘other equipment’ refers to farm equipment under the rule of construction known as ejusdem generis and also that such exception is ambiguous and such ambiguity should be liberally construed in favor of the policy holder.
“The rule ejusdem generis is that when general words follow an enumeration of particular cases, such general words are held to apply to cases of the same kind as those which are expressly mentioned. In the first place if the exception was just the words ‘a farm type tractor or other equipment’ there would be some substance to this claim, but the language is not general but specifies that such equipment be designed for use principally off public roads. That, in effect is true also of farm tractors — they are designed for use principally on the farm and not on the highways. The Court feels this exception is not ambiguous and means just what it says. This auto racer was designed principally for use off the public road, and therefore is not an automobile within the meaning of the definition in the policy.”
⅜ ⅜ ⅜» ⅜

In addition, we think it is clear the automobile which struck appellant and his family was “designed for use principally off public roads” for the reason it simply could not qualify under the provisions of Article 6701d, Sections 108-139a, Vernon’s Ann.Tex.Civ.St. These statutes require automobiles which operate on public highways to be equipped with such safety equipment as horns, tail and head lights, signalling equipment, etc. The vehicle was completely lacking in the basic required equipment to permit it to be operated on public roads and highways. In view of the holding of the Beagle case, together with these additional facts, we conclude that the vehicle in question was designed “principally for use off public roads” and that, therefore, is not an automobile within the meaning of the policy.

Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    Marion W. McNEW, Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellee.
    No. 16713.
    Court of Civil Appeals of Texas. Fort Worth.
    March 11, 1966.
    Rehearing Denied April 1, 1966.
    Spurlock & Schattman and Kenneth Spell, Fort Worth, for appellant; Rumph, Ivy & Karpenko, and Kenneth Spell, Fort Worth, for appellant in re motion for rehearing.
    Garrett & Garrett, and Rufus S. Garrett, Jr., Fort Worth, for appellee.
   MASSEY, Chief Justice.

Workmen’s compensation case. We will refer to Marion W. McNew, plaintiff below, as the-claimant, and to the defendant Hartford Accident and Indemnity Company as the insurer or insurance company.

The judgment from which claimant took an appeal to this Court was a summary judgment granted on motion of the insurance company. The ground therefor, as stated in the motion, read: “The pleadings and depositions on file together with the attached affidavit show that plaintiff failed to file his claim for compensation until June 25, 1964, and that, as a matter of law, good cause for such delay did not exist up until the time said claim was filed and that there is no genuine issue as to any material fact that this defendant, the moving party, is entitled to a judgment that plaintiff take nothing by his suit against this defendant as a matter of law.”

Claimant, in his order for transcript in the case, requested all papers in the cause be included therein. There is no affidavit in the record. It therefore appears that the mention of one in the above quoted paragraph was inadvertent and that an affidavit played no part in the action of the court. There were two depositions on file, and these were brought up. Obviously, the summary judgment was granted on the strength of evidence contained therein.

One deposition is that of Frank Hudak, claims manager for the insurance company. The fact of the existence of delay in the filing of a claim for compensation is not in dispute. Nothing in Mr. Hudak’s deposition relates to the cause for this delay. The other deposition is that of the claimant. Nothing in this deposition relates to the cause and occasion for claimant’s delay in filing his claim for compensation. In other words there is no question but that there was a delay, but the question of whether good and sufficient cause existed whereby the Industrial Accident Board or the trial court would be warranted in excusing such delay is unresolved.

The pleadings at time summary judgment was granted were not in condition for a trial on the merits. In particular, though the insurance company had by sworn pleading advanced the defense of claimant’s delay in filing his claim, the claimant had never responded by filing pleadings in which he asserted the existence of good cause which would excuse the delay. However, in its motion for summary judgment the insurer asserted that good cause for such delay did not exist as a matter of law. It predicated its right to summary judgment upon this fact and not upon claimant’s failure in respect to pleadings.

Claimant did not respond to the insurer’s motion for summary judgment. He filed nothing. He relied on the failure of the motion to show that the insurer was entitled to judgment as a matter of law. In this case claimant is not thereby prejudiced and the insurer must be treated as having cast the burden upon itself (by the form of its motion) to prove that there was no genuine issue as to whether the claimant had good cause for the delay in filing his claim for compensation. (See the language quoted from the motion.) 45 Tex.Jur.2d 612, “Pleading”, § 136, “Affidavits of Parties”; McDonald, Texas Civil Practice, Vol. 4, § 17.26, “Summary Judgments”, and § 17.26.5, “— (IV) Determination of Motion on Matters Outside Pleading”.

The insurer has not discharged its burden on its motion for summary judgment to show that there was, as a matter of law, an absence of good cause for plaintiff’s delay in filing claim. It is true that the testimony to be found in the deposition of the claimant would negative some of the usual reasons advanced as good cause for such delay, but the reason plaintiff delayed in filing his claim is nowhere shown. It cannot be said that the evidence which does support the insurer’s motion negatives the existence of good cause for the reason (or reasons) for the delay, which claimant might advance on a trial on the merits.

Judgment is reversed and the cause remanded.


author: WERLEIN, Justice.

text:
    Hunter L. HARANG, Appellant, v. AETNA LIFE INSURANCE COMPANY et al., Appellees.
    No. 14696.
    Court of Civil Appeals of Texas. Houston.
    Feb. 10, 1966.
    Rehearings Denied March 31, 1966.

      Phelps, Kilgarlin & Snell, Jim S. Phelps, Houston, for appellant.
    Fred Parks, Ruby Sondock, Houston, for Aetna Life Ins. Co., appellee.
    Bass C. Wallace, Brian E. O’Neill, Houston, Andrews, Kurth, Campbell & Jones, Houston, of counsel, for Dentist appellees.
   WERLEIN, Justice.

This is an appeal from a summary judgment granted appellees. The suit was originally brought by appellant, Dr. Hunter L. Harang, on March 24, 1959, against Aetna Life Insurance Company, a Corporation, Aetna Casualty & Surety Company, a Corporation, Aetna Insurance Company of ■Hartford, a Corporation, Aetna Insurance Company, a Corporation, Langham, Lang-ston & Burnett, a Corporation, Association or Partnership (designated in appellant’s amended petition: Langham, Langston & Dyer), James E. Holt, Orlo James Mack, and Tommy W. Ross, sometimes referred to herein as Aetna Appellees, for actual and exemplary damages growing out of an alleged conspiracy, defamation, and interference with appellant’s practice, occurring in 1958, and resulting in the revocation of appellant’s membership in the Pious-ton District Dental Society on June 18, 1958, and as a result thereof the deprivation of his right to place his patients in a number of hospitals in Harris County, since such hospitals deny their facilities to those not members of a recognized medical or dental society. On June 22, 1964, appellant filed his first amended original petition in which he added as defendants the following parties: Dr. John O. Wynn, Dr. Percy A. Wynn, Dr. Wayne H. Speer, Dr. Hutton A. Shearer, Dr. Oscar E. Ran-franz, and Dr. Geston M. Platt, who will be referred to herein as Dentist Appellees.

In his second amended original petition filed February 15, 1965, appellant pleaded at great length, and for the first time alleged that on May 27, 1964, there was a meeting at the Safari Club of the Houston Association of Oral Surgeons where were present the same group of dentists and insurance representatives that met in 1958, which meeting was set for the purpose of making sure that appellant never got back into the Houston District Dental Society and also for the purpose of planning to get the Texas State Board of Dental Examiners to bring action to revoke appellant’s license. In his affidavit filed May 25, 1965, appellant stated that on April 19, 1964 his membership was voted on and that prior thereto a telephone committee had been set up for the purpose of calling the members of the Houston District Dental Society and to advise them to vote against appellant’s readmittance to the membership of the Society.

It is our view that appellant’s action against the dentist appellees to recover damages for the alleged overt acts in 1958 growing out of the alleged conspiracy occurring in 1958 was barred by the two or the four year statute of limitations of this State, which were pleaded by the dentist appellees in their first amended answer, and hence a summary judgment was warranted as to such acts. Rule 166A(c), Texas Rules of Civil Procedure, with respect to motions for summary judgments, provides, among other things:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

In Temco Feed Mills, Inc. v. Beckner, Tex.Civ.App., 366 S.W.2d 255, writ ref. it was held that it was proper to grant a summary judgment for the defendant sued upon an action barred by the statute of limitations. In Birdwell v. American Bonding Company, Tex.Civ.App., 337 S.W.2d 120, writ ref., n. r. e., cert. den. 367 U.S. 904, 81 S.Ct. 1920, 6 L.Ed.2d 1250 the Court stated:

“In other words, we are of the opinion that a defendant is entitled to prevail in his motion for summary judgment based upon demonstration that the claim is barred by the affirmative defense of limitation in the absence of the plaintiff’s ability to explain and excuse his delay by discharging his correlative burden (shifted to him as the result of the proof by the defendant) of specifying some evidence which would change the result otherwise undoubtedly achieved by the defendant as the moving party. McDonald, Texas Civil Practice, ‘Judgments’, sec. 17.26.1 ‘(Summary Judgments) — B. When Summary Judgment Proper’; LeMond and Kreager’s article on ‘The Scope of Pleading as Proof in Summary Judgment Procedure’, 30 Tex. Law Review, pp. 613-619.”

The record shows that plaintiff initially filed suit against the Aetna Appellees on March 24, 1959, but he did not join the dentist appellees until June 22, 1964. Appellant admits in effect that the two year statute of limitations applies to a conspiracy suit. He is apparently predicating his cause of action entirely upon the alleged conspiracy as shown by his statement on page 49 of his brief, as follows:

“In this case we have alleged a conspiracy and in the alternative that the Defendants have libeled and slandered the Plaintiff, as well as interfered illegally in his right to conduct his profession. We will not even attempt to cover the alternatives in this brief.” In view of appellant’s statement, this appeal is limited to the conspiracy complaint.

Appellant cites the case of Steiner v. 20th Century-Fox Film Corp., 9th Cir. 1956, 232 F.2d 190, 194, 195, to the effect that “The statute of limitations in a civil conspiracy runs from the commission of the last overt act alleged to have caused damage.” The Court in the Steiner case said:

“The overt acts alleged in this case concern the lease terms obtained by appellees in 1935, 1936, and 1937. The options to renew received in 1938 and the closing of the Larchmont Theatre in 1952 are also claimed to be overt acts. Only the closing of the theatre is sufficient to bring the complaint outside the bar of the three-year California statute of limitations.”

We are of the opinion that each continued invasion of the plaintiff’s interest causing loss and damage in a conspiracy case is in effect a new cause of action, and the statute of limitations begins to run when it occurs. See Radio Corporation of America v. Rauland Corp., D.C., 186 F. Supp. 704, 707, and authorities cited.

In Northern Kentucky Tel. Co. v. Southern Bell T. & T. Co., 6th Cir. 1934, 73 F. 2d 333, 97 A.L.R. 133, the Court used the following language:

“In the instant case there are no overt acts alleged to have been committed within one year prior to the filing of the action. In Nalle v. Oyster, 230 U.S. 165, at page 182, 33 S.Ct. 1043, 57 L.Ed. 1439, it was said to be a well-settled rule that no civil action will lie for a conspiracy unless there be an overt act that results in damage to the plaintiff. A necessary corollary to this rule would seem to be that, when there is an overt act, or the last of a contemplated series of overt acts, the cause of action accrues and -the statute of limitations begins to run. If this were not true, then it would result that, in every case where damages resulting from a wrongful act are in their nature continuing, there would be no limitation upon the right of action, and the beneficent purpose of the statute to put a period to the right to sue would be defeated. This would apply equally whether the one-year or the five-year statute governed. We con-elude that the plaintiff’s action is barred, and it becomes unnecessary to consider the other questions in the case.”

Appellant has set out only one alleged overt act occurring within two years prior to the time the dentist appellees were joined as parties in the suit on June 22, 1964 and one overt act alleged to have occurred subsequent to the time the dentist appellees were joined. The first of these alleged acts was described in appellant’s affidavit as occurring at a meeting of the Houston Society of Oral Surgeons at the Safari Club in May of 1964, as follows: “Plans were even made at this meeting at the Safari Club for the taking of my license and having my office privileges in the Medical Towers Building taken away from me.” In another affidavit appellant stated in substance that at a regular monthly meeting of the Houston District Dental Society in April, 1965, a paper was read by the defendant, Hutton A. Shearer, as a representative of all the dentist appellees, to request the Houston District Dental Society to continue to refuse appellant membership in said organization. In such affidavits appellant recited that he had personal knowledge that such incidents occurred. The fact is, however, that he could not have had personal knowledge of the complained of proceedings at said two meetings since he was not a member of either group, nor was he present at either meeting. In one of his affidavits in which appellant referred to the alleged meeting at the Safari Club in 1964 and the meeting of the Dental Society in 1965, he stated: “ * * * these same doctor defendants arranged it so that I was not allowed to attend the meetings.”

The law is well settled that an affidavit based on hearsay is insufficient to warrant the overruling of a motion for summary judgment. See Sparkman v. McWhirter, Tex.Civ.App., 2(53 S.W.2d 832, writ ref. Nowhere in his affidavits does appellant allege he was present at said meetings in June, 1964 and April, 1965. He swore just to the contrary. His affidavit was obviously based upon hearsay, and cannot be construed as raising a genuine fact issue. See Drake v. First National Bank, Tex.Civ.App., 254 S.W.2d 230. Furthermore, appellant has failed to allege any overt act which occurred as a result of the meeting at the Safari Club in May, 1964. In a civil conspiracy, as stated in the Steiner case, supra, the statute of limitations runs from the commission of the last overt act alleged to have caused damage. In the instant case appellant has failed to allege an overt act, much less an overt act causing damage, since plaintiff’s license has not been revoked nor have his office privileges been taken from him.

In his affidavit of May 25, 1965, appellant states that there were 200 dentists present at the meeting held in April, 1965, and further that the defendant doctors had a telephone committee working to get members out to vote, and that appellant’s application for membership was denied. It was shown by affidavits of those present at the meeting that the vote was approximately 80% against readmission of appellant. Appellant’s statement with respect to the telephone committee is manifestly based only upon hearsay and would, therefore, be inadmissible. Appellant’s global statement that the facts sworn to by him are upon his own experience and facts told him by the party defendants fails to show what was told him or by whom or when. But even if such statement can be considered at all, it relates to matters either barred by limitation or which fail to show any overt act resulting in damage.

The trial court recited in his judgment, among other things, that:

“The Court having considered the pleadings and depositions on file herein, the Motions of all Defendants for Summary Judgment together with all supporting Affidavits of said Defendants, and the Court having likewise considered Plaintiff’s Contest to the Motions for Summary Judgment of all Defendants as well as all of the affidavits attached to Plaintiff’s Contest to Defendants’ Motions for Summary Judgment and having considered also the Affidavits filed by Plaintiff prior to and during said hearing, and the Court on the afternoon of May 25, 1965, having granted leave to Plaintiff to file one additional affidavit on said day, which Affidavit is the one with exhibits “A”, “B” and “C” attached thereto, and the Court having considered all arguments of counsel offered during said hearing, which hearing was concluded shortly prior to 12 o’clock noon on May 25, 1965, and the Court being of the opinion that there is no genuine issue as to any material fact and that all the Defendants herein are entitled to Judgment as a matter of law * * * ”

Judgment was signed and entered by the court on May 31, 1965. Prior thereto on May 28, 1965, the court on motion of the dentist appellees entered a written order confirming the court’s oral order of May 24, 1965, which permitted and authorized the filing nunc pro tunc of affidavits supplementing the affidavits previously filed in behalf of the dentist appellees, so as to change the form of the jurat on said affidavits and to include an appropriate paragraph showing that the same were made- upon personal knowledge of the affiants. Pursuant to such order supplemental affidavits were filed nunc pro tunc as of the date of the original affidavits of the dentist appellees.

Appellant contends that the affidavits of said dentist appellees and others could not be considered because filed too late. There may be some question as to whether the original affidavits that had been filed sufficiently showed that they were made upon the personal knowledge of the dentist ap-pellees. Although they do not state in so many words that they were made by the dentist appellees as of their own knowledge, they do indicate that they were so made. In Osborne v. Dean, 359 S.W.2d 550, Tex.Civ.App., the court said:

“Though we believe a more strict compliance with the stated rule would be better form we hold the affidavits on their faces show that they were made on personal knowledge of the affiants and that they were competent to testify to thfe material matters stated therein. * * * ”

It should be noted that the supplemental affidavits were filed prior to entry of judgment. The court may permit supplements to affidavits filed in a summary judgment proceeding. See Lobit v. Crouch, Tex.Civ.App., 293 S.W.2d 110, writ ref., n. r. e.; De La Garza v. Ryals, Tex.Civ.App., 239 S.W.2d 854, writ ref., n. r. e.; Rule 166-A(e), T.R.C.P. Furthermore, a trial court has control over its judgment until it becomes final by operation of law, and during such time the court could on its own motion or motion of a party, vacate, modify, correct or reform such judgment, or grant a new trial. Bergman v. West, Tex.Civ.App., 262 S.W.2d 435. The trial court did not err in giving appellees permission at the time of the hearing to file supplemental affidavits or in confirming such oral permission by written order before entering the summary judgment. There was no change in the substance of the affidavits. Moreover, appellant is scarcely in a position to complain of the alleged late filing by appellees of affidavits, since at the conclusion of the hearing he requested and obtained permission to file an additional affidavit as shown by the recitation in the court’s judgment hereinabove set out, and such affidavit and designated exhibits were filed.

We have concluded, for the reasons above stated, that the dentist appellees have shown that there is no genuine issue of material fact with respect to any conspiracy or other alleged cause of action against them.

In his contest to the motions for summary judgment, appellant stated that he was in accord with the motion for summary judgment filed by Aetna Insurance Company, Aetna Insurance Company of Hartford, Langham, Langston & Dyer and the Estate of James E. Holt. The question for determination, therefore, is whether there is any genuine issue of material fact as to a conspiracy between the remaining Aetna appel-lees and the dentist appellees to bring about the revocátion of appellant’s membership in the Houston District Dental Society and thus keep him from placing his patients in certain hospitals in Harris County.

In an effort to show that there was such conspiracy appellant took the oral depositions of appellees, Orlo James Mack, and Tommy Woods Ross, respectively Claim Manager and Claim Representative in Houston, for Aetna Casualty & Surety Company, at the time of the alleged conspiracy in 1958. Whenever appellant undertook to elicit from either of such appel-lees any information pertinent to the alleged conspiracy, appellees’ counsel would instruct the witness not to answer. In the deposition of Mr. Mack covering some 63 pages such witness was instructed some 97 times not to answer. As a result of such instructions, the witnesses refused to answer and appellant was unable to prove anything by them other than that they were employees of Aetna Casualty & Surety Company and that they had made an investigation to check on the services rendered certain of appellant’s patients and the amounts charged therefor and the claims made upon Aetna with respect thereto.

Appellant contends that the trial court erred in granting motions for summary judgment after said appellees refused to give testimony when their depositions were being taken since such refusal made it impossible for him to set forth with any more certainty the evidence relative to the conspiracy upon which his cause of action is based. Appellant had a very simple remedy to which he could have resorted in obtaining the testimony of said appellees. Rule 215a, Texas Rules of Civil Procedure, provides in substance that if a party or other deponent refuses to answer any question propounded upon oral' examination, on reasonable notice to all persons affected thereby, either party may apply to the court in which the action is pending for an order compelling an answer, or for an order requiring the remainder of the deposition, to be taken before the judge of such court. Appellant failed to comply with such requirement and hence he is in no position to assert that there was error on the part of the trial court.

In order to determine whether the trial court erred in granting the summary judgment in favor of the remaining Aetna ap-pellees, it is necessary to determine whether appellant raised any genuine issue of material fact in his own affidavits and pleadings with respect to a conspiracy. Appel-lees’ pleadings and affidavits furnish no proof thereof, nor do the depositions which he undertook to take. Appellant filed two affidavits on May 24, 1965, the day set for hearing the motions for summary judgment, and two the following day. We have assiduously examined each of such affidavits and also appellant's contest to the motions for summary judgment in an effort to separate facts based upon knowledge from hearsay, opinions and conclusions. We shall not try to designate the affidavits in which the statements herein set out are contained, but shall treat them as one affidavit.

After denying certain statements made in the affidavit of appellee, Orlo James Mack, appellant stated as of his own knowledge in his affidavit that said appellee and appellant talked on several occasions and that said appellee threatened that if appellant did not discontinue putting patients in hospitals for oral surgery, he would begin an investigation of appellant’s practice and charges, and he would certainly cause appellant trouble. Appellant also stated that, said appellee complained that appellant’s practice was costing the insurance company too much money, and was running up his loss ratio, and that his home office had told him that the loss ratio must be reduced.

Appellant further stated that he personally checked the hospital records of each of his patients whose cases were questioned by appellees and he found in each of those hospital records an assignment of benefits whereby the hospital was given permission to give to Aetna Life Insurance Company any information desired in connection with their records, that such assignments of benefits were given to the Aetna Life Insurance Company; and that since the hospital records all contained the assignments of benefits records, it shows that the records of appellant’s patients were obtained from the hospital at the request and with the consent of appellee, Aetna Life Insurance Company, since no one could obtain such records from the hospitals without first getting the assignment of benefit forms from said company; that he discussed with appellee Mack the investigation that was being conducted, and he (Mack) admitted that he was having the investigation made of appellant’s patients, and admitted that one,,of the persons making the investigation was his employee, appellee Tommy W. Ross; that the meeting between the representatives of Aetna and the oral surgeons was conducted on May 15, 1958 for the purpose of furthering the conspiracy made the basis of appellant’s cause of action.

He also stated that on or about May 15, 1958, the oral surgeons met with the representatives of. the insurance company, such representatives now being identified as Charles Holmans and Charles Eaton, who were representatives of the appellees, Aetna Life Insurance Company and Aetna Casualty & Surety Company, and that appellant was at the meetings and heard the dentist appellees say that they were representatives of the Aetna Life Insurance Company who met with them; that appellee Mack, who was in charge of the Claims Department of the appellees, Aetna Life Insurance Company and Aetna Casualty & Surety Company, went to the hospitals and made checks of the hospital records where appellant had been performing operations, and following such investigation said appellees, acting through their employees and agents, in main appellee Mack, prepared a set of written charges against appellant, which charges are as follows:

“ ‘Between November 10, 1955 and May 30, 1957, Dr. Hunter L. Harang, oral surgeon, 716 Medical Arts Building, Houston, Texas, in submitting claims for surgical benefits under assignments received by him from beneficiaries under group hospitalization and surgical benefits insurance policies, represented in eleven separate cases that he had surgically extracted four impacted and imbedded wisdom teeth. In nine of these eleven cases he further represented that he had found and surgically removed an os-teoma of the maxilla, a cyst of the mandible, or both. In each of the eleven cases a bill or statement was submitted for the surgery which Dr. Harang represented he had performed and, in each case, payment was made by the Aetna Life Insurance Company directly to Dr. Harang in accordance with the benefits payable for the described procedure under the applicable insurance policy.

“ ‘In eight of the above mentioned eleven cases hospital records, prepared in the handwriting of Dr. Harang, describe substantially the same surgery which he represented to the Aetna Life Insurance Company he had performed.

“ ‘WHEREAS, in truth and in fact, Dr. Hunter L. Harang had extracted fewer than four impacted and imbedded wisdom teeth in each of the eleven cases mentioned above and, in the majority of those cases, his patients were unaware of any surgical procedure beyond the extraction of teeth.

“‘AND WHEREAS, in truth and in fact, at the hospital in which eight of the above operations were performed, Dr. Hunter L. Harang was the only oral surgeon who found and removed an osteoma of the maxilla, a cyst of the mandible, or both, during the entire year 1957.

“‘AND WHEREAS, in truth and in fact, Dr. Hunter L. Harang had failed to submit any removed tissue for pathological examination in 174 cases wherein he allegedly found and removed a cyst of the mandible or osteoma of the maxilla during 1957 despite hospital rules requiring the submission of removed tissue for examination.’ ”

Appellant further stated that such charges were completely false, but said ap-pellees as well as their agents and employees contacted various organizations and published such false charges in attempting to have appellant’s license revoked, so he could not put his patients in the affiliated hospitals of Harris County, Texas; that in April or May of 1958 the representatives of appellees insurance companies met with certain oral surgeons, members of the Harris County Oral Surgeons Association and the Houston District Dental Society for the purpose of devising a plan whereby appellant would be stopped from hospitalizing his patients in said hospitals, and said representatives of the insurance companies and the dental surgeons, among whom were the appellee dentists, devised a plan whereby the doctors would help the insurance companies to accomplish their purpose, and to see that appellant’s hospital privileges were revoked and to have appellant’s membership in the Houston District Dental Society revoked; that the appellee dentists met with the appellee insurance companies and their representatives on two or three occasions in the Jesse Jones Library Building in the Texas Medical Center in April and May, 1958, and formulated such plan and conspiracy; that the investigation that the appellee insurance companies had prepared against appellant was turned over to the appellee oral surgeons so it could be used by them in carrying out their purpose, and said appel-lee dentists and oral surgeons began their systematic attack upon appellant which culminated in his membership being revoked, in Houston District Dental Society on June 16, 1958; that the written charges which were drawn up by the insurance companies as well as the oral charges, were published at the meetings conducted by the doctors and the insurance representatives during April, May and June, 1958, and that the appellee dentists stated that the false charges which had been made and prepared by the Aetna appellees were all a part of the plan and conspiracy to cause appellant to lose his hospital privileges.

Appellant also stated that he was at the hearing on June 5, 1958 of the censure and grievance committee of the Houston District Dental Society, and that he never at any time admitted that he did anything wrong other than the signing of some hospital reports which he signed without reading, and that any admission in the transcript of the proceedings at such meeting that he made relative to doing anything wrong was only referring to the signing of such hospital records. He then proceeded to exonerate himself from any wrongdoing whatever.

The law is well settled that each conspirator is responsible for the acts of his co-conspirators done in pursuance of the conspiracy and during its existence. Hence when a conspiracy has been proved, the acts and declarations of each conspirator during the pendency of the conspiracy and in furtherance of the common design are receivable against his co-conspirators as admissions. McCormick & Ray, Texas Law of Evidence, Vol. 2, p. 64, Sec. 1171, and authorities cited. If appellant sufficiently proved up a conspiracy between the Aetna appellees and the dentist appellees, any declarations later made by either in furtherance of the conspiracy would constitute admissions against all. As to what constitutes a civil conspiracy and proof thereof, see International Bankers Life Ins. Co. v. Holloway, Tex.Sup.1963, 368 S.W.2d 567.

It is our view that the insurance companies had the right to investigate appellant’s practice and the charges he made and the bills which they were called upon to pay by reason of benefit assignments made by appellant’s patients. If such investigation disclosed that appellant was making improper charges and thereby collecting from the insurance companies on benefits assignments from patients more than he was entitled to receive, the Aetna appellees had recourse to the courts to recover any overcharges made by appellant which they had paid. Such action would protect them, their stockholders and the beneficiaries in their policies. They did not however, have the right to turn over to the appellee dentists the report of the investigation which they had made nor to turn over to them the written charges made against appellant for the purpose of having his membership in the Houston District Dental Society revoked with the resultant deprivation of his right to place his patients in the affiliated hospitals in Harris County. They, therefore, in combination with the dentist appellees resorted to unlawful means to accomplish their purpose of keeping appellant’s patients out of hospitals in Harris County, and as a consequence caused damage to appellant. At least, a fact issue was raised with respect thereto.

We recognize that all of the charges made by appellant have been strenuously denied, but we are here confronted with rules governing the granting of a summary judgment. It has been held that the record of a summary judgment proceeding consists of the pleadings whose office it is to outline the claims and defenses of the respective parties, the depositions and admissions on file and the affidavits furnished either in support of or opposing the motion. Gaines v. Hamman, 1962, 163 Tex. 618, 358 S.W.2d 557. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact must be resolved against him, and the pleadings, depositions and affidavits must be reviewed in the light most favorable to the party opposing the motion for summary judgment. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., Tex.Sup.1965, 391 S.W.2d 41. See also Gulbenkian v. Penn, 1952, 151 Tex. 412, 252 S.W.2d 929; Mecom v. Thompson, Tex.Civ.App., 239 S.W.2d 847, writ ref.

In resolving all doubts as to the existence of a genuine issue of material fact most favorably to appellant, we are of the opinion that the present record does not disclose a case for summary judgment in favor of the Aetna appellees.

Judgment of the trial court is affirmed as to the dentist appellees, and reversed and remanded as to the Aetna appellees.

Affirmed in part and in part reversed and remanded.

COLEMAN, J., not participating.


author: LANGDON, Justice.

text:
    Charles M. DRAKE, Jr., Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 16702.
    Court of Civil Appeals of Texas. Fort Worth.
    March 4, 1966.
    Rehearing Denied April 1, 1966.

      McGown, Godfrey, Logan & Decker, and Warren W. Shipman, III, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Fort Worth, for appellee.
   LANGDON, Justice.

This is a driver’s license suspension case. A Justice of the Peace in Tarrant County, Texas, entered judgment that appellant was an habitual traffic violator within the meaning of 6687b, § 22 (b), par. 4, Vernon’s Ann.T ex. Civ.St. The judgment was based upon four alleged convictions for moving violations arising out of different transactions within a period of twelve months. Appellant appealed to the Tarrant County Court at Law to set aside the Justice Court judgment. The appellee filed its original answer alleging appellant had six convictions for moving violations arising out of different transactions within a twelve month period. Both sides filed motions for summary judgment. The appellee’s motion was granted and that of appellant overruled.

Attached to the appellee’s motion were properly authenticated copies of six notices of conviction for moving traffic violations occurring between September 13, 1962, and April 16, 1963.

Each of the notices or abstracts of convictions were reports made upon forms provided by the Department of Public Safety for the purpose of securing information from the records of corporation courts and the justice of the peace courts of the State of Texas as to judgments of conviction rendered by such courts for traffic violations. Each of the six notices or reports is in substantial compliance with the provision of Article 6701d, § 152, V.A.T.S. and were admissible. Texas Department of Public Safety v. Richardson, 384 S.W.2d 128 (Tex.Sup., 1964), and authorities cited therein.

The information contained in the notices or abstracts of conviction are in part as follows:

Cause No. Court Offense Date Complaint Filed Convietion

(1) AT 155875 Corporation Court, Fort Worth, Tarrant County, Texas Speeding 9-13-62 (Amount of fine or 9-14-62 9-19-62 forfeiture — $20.00)

(2) 3011 Justice of the Peace Court, Precinct 3, Place 1, West McLennan County, Tex. Speeding 1-17-63 (Amount of fine or 1-17-63 2-1-63 forfeiture — $16.50)

(3) 55769 Justice of the Peace Court, Precinct 1, Place 2, Waco, McLennan County, Tex. Speeding 2-26-63 (Amount of fine or 2-28-63 3-8-63 forfeiture — $20.50)

(4) 37343 Justice of the Peace Court, Precinct 1, Place 1, Hillsboro, Hill County, Texas Speeding 3-19-63 (Amount of fine or 3-27-63 3-27-63 forfeiture — $16.50)

(5) 37500 Justice of the Peace Court, Precinct 1, Place 1, Hillsboro, Hill County, Texas Speeding 4-16-63 (Amount of fine or 4-24-63 5-6-63 forfeiture — $20.50)

(6) 2581 Justice of the Peace Court, Precinct 3, Place 1, West, McLennan County, Tex. Speeding 4-16-63 (Amount of fine or 4-16-63 5-6-63 forfeiture — $20.50)

Each of the alleged convictions was based upon a moving violation growing out of a separate transaction occurring within the period of twelve months.

The material facts of this case are almost identical to those in the Richardson case, supra. The appellant attempted to show by his summary judgment affidavit dated February 15, 1965, that the convictions relied upon by the appellee were illegal because he was never notified that there would be a trial; he never appeared in open court in person or by an attorney in connection with any of the alleged offenses or convictions; he never personally or by an attorney entered a plea of any kind in connection with any of the alleged offenses; he never posted nor forfeited bond or collateral in any of the cases and was never convicted of any of such offenses.

The affidavit differs with that in the Richardson case, supra, in that here the appellant makes no contention that he was not guilty of the offenses charged to him but states that no judgment was rendered convicting him of any offense in causes Nos. AT 155875, 3011 and 2581 above described. In a second affidavit dated June 1, 1965, the appellant in more detail made essentially the same statements as in the previous affidavit and additionally stated he was not notified of any action, hearing or trial in connection with the above three cases to take place on the dates on which judgments were taken therein or otherwise.

The appellant on appeal contends that the court erred in rendering summary judgment against him rather than sustaining his motion because (1) as a matter of law no judgment of conviction was entered in causes Nos. 3011 and 2581 for the same reasons as stated in his affidavit, and (2) the judgments in Waco and Fort Worth are void on their faces since the appellant did not appear in person or by attorney, entered no plea, posted no bond, received no trial and jurisdiction did not attach.

We affirm.

The appellants have stipulated that the judgment records of the justice court consists of “the court justice’s criminal docket” and copies of the docket sheets covering causes Nos. 3011 and 2581 were attached to the appellee’s motion. The words “judgment entered on this 26th day of March, 1965” appear on the docket sheet in both cases. There also appears on the margin of the docket sheets the dates February 1, 1963, and May 6, 1963, the dates contained in the abstracts or notices under the heading, “conviction.” In Miller v. Texas Department of Public Safety, 375 S.W.2d 468 (Dallas Tex.Civ.App., 1964); Sup.Ct. opinion 386 S.W.2d 760 (1964), it was held that the dates of the offenses control and not the dates of conviction in determining whether four transactions occurred within the period of twelve months.

An attorney on behalf of the appellant by correspondence and telephone calls arranged with various courts involved for the payment of fines and costs and thus avoided the necessity for the expenditure of time and money in attending each court for trial. Under such circumstances he cannot now complain that he received no notification of a date for trial or judgment in such cases.

In Texas Department of Public Safety v. Miller, supra, it was stated, “The purposes of the statute are not served by giving emphasis to immaterial matters. The suspension of a driver’s license and the duration of the suspension are matters lying within the discretion of the Department of Public Safety. Texas Department of Public Safety v. King, Tex.Sup., 366 S.W.2d 215 (1963). The prerequisite to the exercise of this discretionary power is a proper showing that a license holder is an habitual violator of the traffic law, i. e., that he has been convicted of four moving traffic violations which violations occurred within a twelve month period. It is the convictions that are of importance and no substantial rights of the respondent were prejudiced by the use of the notices or abstracts to establish such convictions. If the notice of a conviction be inaccurate it may be corrected by the use of properly authen-cated copies of the docket of the justice of the peace or the corporation judge as was done in Department of Public Safety v. Guleke, Tex.Civ.App., 366 S.W.2d 662, no wr. hist. (1963). In fact, the notices or abstracts may be corrected by either party but until corrective measures are taken, such notices or abstracts are to be accepted as evidence of ‘the matters stated therein.’ ”

The appellant made no effort to effect any change in the notices or abstracts of conviction and until such changes are made the court must accept them as evidence of the matters stated therein.

Rather than the route above prescribed, the appellant chose to make a collateral attack upon specified judgments. In our opinion the court in each case had jurisdic-diction not only over the offense and the person of the appellant but to render judgment.

In Texas Department of Public Safety v. Richardson, supra, 384 S.W.2d at p. 130, the Supreme Court of Texas stated, “Unless the invalidity of these judgments is proclaimed upon the face of the judgments themselves, such judgments in this proceeding are to be afforded verity until set aside by a court having jurisdiction to do so. In Murchison v. White, 54 Tex. 78, decided in 1880, this Court said:

“ ‘ (T)he judgment of a court having jurisdiction, if so irregularly or erroneously rendered as to make it liable to be vacated by a direct proceeding for this purpose, or to be reversed on appeal of writ of error, is nevertheless valid until thus vacated or reversed. * * *

“ ‘It is believed that a careful analysis of the cases on this subject will show that, in a collateral proceeding, the only contingency in which the judgment of a domestic court of general jurisdiction, which has assumed to act in a case over which it might by law take jurisdiction of the subject matter and the person, can be questioned, is when the record shows affirmatively that its jurisdiction did not attach in the particular case.’ ”

In the same opinion at pages 132 and 133, it is stated: “If he wishes to attack any irregular judgment against him which is not wholly void upon its record, the forum for such action is the court which rendered the judgment or in the court vested with authority to review such judgment. Here the respondent does not seek to set aside or avoid the punishment assessed for his law violation as, for example, is the case in the usual habeas corpus situation, but on the contrary seeks to avoid the administrative safety regulation by collaterally attacking in a civil court the criminal convictions rendered against him which are not shown to be invalid upon their records. This he cannot do.”

There is no affirmative showing that jurisdiction did not attach in the cases attacked by appellant.

When complaints are filed and cases of the nature here involved are initiated and pending, they may be closed out by judgments of dismissal or if tried before the court or to a jury judgment may be entered on findings of guilty or not guilty. When the record in a case of the type here involved reflects that a fine and costs were assessed or paid in a stated amount, it is presumed that same is based upon a finding of “guilty” (conviction), otherwise there would be no basis or legal justification for the assessment and collection of a fine and costs. The defendant in such a cause has the unchallenged right to enter a plea of not guilty, post bond and have the case set for trial to the court or a jury at a specified time and date.

The appellant on his own initiative and by his conduct waived a trial of any kind and voluntarily paid fines specified by the court in each of the cases above listed. By such action he obviated the necessity for any personal appearance before the court for trial or any further proceedings. Under such circumstances it would have been a useless gesture for the court, having collected a fine in such a case to set same for trial and to notify the appellant, who had voluntarily paid the fines in order to avoid trial, that his case was now set for trial on a date specified.

This case was not filed for the purpose of visiting additional punishment upon the appellant by increasing the fines or costs in any of the eases here involved or to otherwise enforce or collect on such judgments. This case to suspend the appellant’s driver’s license is for the purpose of protecting the public against incompetent and careless drivers.

The appellant in using the highways of the State is exercising a privilege which is subject to regulations, designed in part, to meet the convenience of the members of the traveling public and to protect them from those users of the highways who habitually violate the traffic rules and regulations. Texas Department of Public Safety v. Richardson, supra. Page 132 of the same opinion states, “From an administrative viewpoint it would be anomalous to say that an offender who had failed to keep his promise to appear and actually committed a further offense, Article 6701d, § 149, had thereby placed himself beyond administrative control, although he had sent the amount of the fine fixed for the offense with which he was charged to the court before which he promised to appear.”

We are of the opinion that the same rule would apply to the facts of this case and that it would likewise be anomalous to say that the appellant by his actions as described herein can place himself beyond administrative control by voluntarily paying the amount of the fines fixed by the various courts, waiving his right to appear in court for a trial and thereby permitting the courts to close the cases by judgments based upon the records and information before them.

By way of summary the appellant had the right or privilege of a trial to the court or a jury in each of the six cases above listed. This right or privilege was in no way denied him. His requests to handle the cases by payment of the fines fixed rather than by trial were acquiesced in by the courts in each instance. Thereafter, being unhappy with the action taken by the courts the appellant had the further right or privilege to directly attack such judgments in the respective courts which rendered the judgments, they being the proper forum and fhe courts vested with authority to review such judgments. If he were successful in such efforts the notices or abstracts of conviction could be changed accordingly.

Again in the Richardson case, supra, at page 131 in discussing Texas Department of Public Safety v. Williams, 356 S.W.2d 848 (Eastland Tex.Civ.App., 1962, no writ hist.), the Supreme Court stated, “If Williams be construed as holding that a judgment of conviction for a traffic violation may be collaterally attacked upon an appeal from the Department’s order suspending a drivers license, such construction does not meet with our approval.”

All points of error are overruled and the judgment of the trial court is in all things affirmed.