text:
    Leonia FORNEY, Appellant, v. MEMORIAL HOSPITAL et al., Appellees.
    No. 7758.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 4, 1976.
    Rehearing Denied Dec. 12, 1976.

      John H. Holloway, Houston, for appellant.
    C. A. Searcy Miller, Dallas, Charles Parker, Houston, for appellees.
   STEPHENSON, Justice.

This is an action for damages brought by plaintiff, Leonia Forney, under the Wrongful Death Statutes, arising out of the death of her husband, Raymond Forney. The cause of action is one commonly known as “medical malpractice” and the defendants are Violet Hiner Sinclair, a nurse anesthetist, and Memorial Hospital. Trial was by jury and judgment was rendered for defendants upon the verdict. The parties will be referred to here as they were in the trial court.

The evidence shows Raymond Forney died on the operating table shortly after the commencement of a general anesthetic being administered by defendant Sinclair.

The jury found that there was a failure to obtain the “informed consent” of Raymond Forney as to the anesthetic procedures performed. Informed consent was defined in the charge as follows:

“By the term ‘INFORMED CONSENT’, as used in this charge, is meant the furnishing to the patient by the doctor or nurse anesthetist sufficient information about the nature of the anesthetic procedures to be performed, the persons who will administer the anesthetics, and the risks, complications, dangers, or hazards associated therewith, to enable the patient to make a knowledgeable, intelligent and informed consent to either accept the anesthetic procedure or to refuse the anesthetic procedure.”

The jury then refused to find that a reasonably prudent person under the same circumstance would have declined to accept the anesthetic procedures administered by defendant Sinclair, if such patient had been properly informed.

The written consent which was obtained in this case reads as follows: “I consent to the administration of anesthesia to be applied by or under the direction of Dr. John Barrett, M.D., and the use of such anesthetics as he may deem advisable.” This written consent was a form used in the defendant Hospital, with Doctor Barrett’s name written in.

Plaintiff argues that she was entitled to recover nominal damages because of the jury finding that there was a failure to obtain the “informed consent” even though the jury answered, “None” to the damage issue. This contention is rejected for the reasons hereinafter stated.

It is stipulated in this record that Dr. Barrett, the anesthesiologist whose name is written into the “consent form” mentioned above, and Dr. Roy Leamon, the surgeon in this instance, had both settled with this plaintiff and had been dismissed as parties defendant.

After a careful and lengthy study of the “informed consent” cases in Texas and other jurisdictions, we have come to the conclusion that the burden was upon the plaintiff to prove and secure a jury finding that it was the accepted practice in the community in which this cause of action arose, for the anesthesiologist or anesthetist to secure an “informed consent” before administering anesthesia.

The evidence shows the obtaining of this form as used in this case was an accepted practice in this community, but the evidence bearing upon whether such consent was an “informed consent” as defined by the court is sharply conflicting. The evidence offered by plaintiff would probably have supported an affirmative jury finding as to “informed consent”. On the other hand, there is no doubt but that evidence offered by defendants would support a negative finding.

Defendant’s evidence indicates that under the accepted practice in their community, it is the responsibility of the attending surgeon to furnish the patient the necessary information as to risks and complications associated with the surgery, and for the anesthetist to do more than let the patient know who would administer the anesthetic. The attending physician having been dismissed as a party defendant before this trial, there is no evidence in this record as to whether he had obtained Raymond For-ney’s “informed consent”.

In the absence of a finding that it was the accepted practice in the community in which this operation was being performed, for the anesthesiologist. or nurse anesthetist to obtain an “informed consent”, we have concluded that it is necessary to have only the physician or surgeon treating or operating upon the patient to obtain the “informed consent.” See Weiser v. Hampton, 445 S.W.2d 224 (Tex.Civ.App., Houston [1st Dist.] 1969, writ ref’d n. r. e.);

At page 230:

“The consent, if any, given to a surgeon, who is to perform an operation, by his patient, must be construed to include consent for him to secure such assistance furnished by the hospital as he may require.”

At page 231:

“The duty of securing the patient’s informed consent rests on the doctor treating the patient or performing the operation. The operating room personnel should not be required to anticipate that the doctor in charge of the operation would fail to secure such consent.”

The second reason this court rejects plaintiff’s contention that she is entitled to judgment based solely on the failure to obtain an “informed consent” from Raymond Forney is the failure of plaintiff to secure a jury finding as to causal connection.

We have come to the conclusion that plaintiff had the burden of establishing the nature of the risk or hazard the defendant nurse had to inform Raymond Forney about in order to obtain his “informed consent”, and then to demonstrate how the failure to inform Raymond Forney resulted in his injury and damage. The language used by the court in Karp v. Cooley, 493 F.2d 408 (5th Cir. 1974), has application to the situation before this court. At page 422, this is written:

“In the instant case it is difficult to determine exactly what injury appellants complain of as resulting from a lack of informed consent. Although not particularly well-developed in Texas cases, other jurisdictions have held (1) that an unrevealed risk that should have been made known must materialize; (2) the unrevealed risk must be harmful to the patient; and (3) causality exists only when disclosure of significant risks incidental to treatment would have resulted in the patient’s decision against it.
* * * * * ⅜
“Appellants failed to produce substantial evidence establishing a medical standard as to what disclosures should have been made to Mr. Karp, any violation of that standard, or causation. Thus, the trial court properly directed a verdict for defendants on the informed consent question.”

See also, Rea v. Gaulke, 442 S.W.2d 826, 831 (Tex.Civ.App., Houston [14th Dist.] 1969, writ ref’d n. r. e.):

“There are situations wherein a doctor’s failure to inform a patient of certain risks incident to a diagnosis or proposed treatment, in obtaining his consent, may be actionable. However, in establishing liability for such failure, the patient has the burden of proving by expert medical evidence that the reasonable medical practitioner of the same school in the same or similar community under the same or similar circumstances, would have told the patient of such risks. The patient also has the burden of proving by expert medical evidence that such failure was a proximate cause of his damage. Wilson v. Scott (Tex.Sup.), 412 S.W.2d 299.”

A third reason for rejecting plaintiff’s contention that she is entitled to recover because of the “informed consent” issue is the special issue mentioned above, that the jury failed to find that a reasonable and prudent person under the same or similar circumstances would have declined the anesthetic procedures administered by defendant Sinclair had the patient been informed of the risks and hazards.

It is noted that this special issue is in the objective form rather than the subjective form. We approve of this method. See Karp v. Cooley, supra, for discussion as to the objective form of this issue. The jury answer to this special issue bars any recovery of plaintiff as it relates to the causal connection requirement as stated above.

An additional reason for rejecting plaintiff’s contention as to “informed consent” is that the law is settled in this state that there can be no recovery of nominal damages in a case brought under the Wrongful Death Statute. McGown v. International G. N. R. Co., 85 Tex. 289, 20 S.W. 80 (1892). See also, Exxon Corporation v. Brecheen, 519 S.W.2d 170, 184 (Tex.Civ.App., Houston [1st Dist.] 1975), reversed and remanded 526 S.W.2d 519 (Tex.1975).

Plaintiff’s next point of error complains of the trial court’s action in giving an instruction to the jury over her objection. The instruction was as follows:

“If you find from the credible evidence that other doctors, anesthesiologists, or nurse-anesthetists recognized more than one method for the administration of anesthesia to Mr. Raymond Forney,' you are instructed that the defendant nurse-anesthetist was at liberty to select any of said methods. A nurse-anesthetist is not negligent merely because he made a choice of a recognized alternative method for the procedures he followed in the administration of anesthesia to Mr. Raymond For-ney, if he exercised the required skill and care in administering and following the method of his choice. This would be true even though other medical witnesses may not agree with him on the choice he made.”

An amendment to Tex.R.Civ.P. 277 which became effective September 1, 1973, includes the following:

“In submitting the case, the court shall submit such explanatory instruction and definitions as shall be proper to enable the jury to render a verdict and in such instances the charge shall not be subject to the objection that it is a general charge.
* ⅜! ⅜ ⅜ Sfc
“The court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers, but the court’s charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers where it is properly a part of an explanatory instruction or definition.”

This court has already recognized the fact that the amendment to Rule 277 liberalized the practice of giving explanatory instruction. See opinion by Justice Keith in In re The Estate of May Belle Wood, Deceased, handed down October 28, 1976, 543 S.W.2d 701. See also, the article by J. Pope and W. Lowerre, “Revised Rule 277 — A Better Special Verdict System for Texas,” 27 Sw. L.J. 577, 587 (1973).

Under this amended rule, we are convinced that the test by which an instruction is measured is not merely whether it is a general charge, but whether it is a misstatement as to the law applicable to the facts. We have studied the prevailing law as it applies to the factual situation existing in the case before us and do not find the explanatory instruction given to be improper. The point is overruled.

The next point of error is that the trial court erred in overruling objections to the testimony of Dr. Joe Walker, who was called as a witness by defendants. The objection is that Dr. Walker’s opinion on the issue of causation was not admissible because it was based in part upon hearsay.

We do not find the record before us supports this complaint made by plaintiff. Dr. Walker’s testimony shows that he read in the hospital record the medical opinion expressed that the patient had suffered a myocardial infarction. However, Dr. Walker says he came to that conclusion by his own study of the EKG without reference to the opinions contained in the hospital records. Plaintiff did not point out to this court where any objectionable testimony appears in our record, as required by Tex.R. Civ.P. 418. The point is overruled.

The trial court sustained an exception to plaintiff’s pleading as to res ipsa loquitur in connection with the cause of action as to defendant Memorial Hospital. The general rule in this state is that the doctrine of res ipsa loquitur does not apply in a medical malpractice case. Bell v. Umstattd, 401 S.W.2d 306, 313 (Tex.Civ.App., Austin 1966, writ dism’d); Barker v. Heaney, 82 S.W.2d 417 (Tex.Civ.App., San Antonio 1935, writ dism’d).

An exception to that rule has been recognized when the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen. Examples of this exception are cases in which the operation is on the wrong part of the body or sponges or surgical instruments are left within the body. One of the most recent expressions on this subject is found in Rayner v. John Buist Chester Hospital, 526 S.W.2d 637 (Tex.Civ.App., Waco 1975, writ ref’d n. r. e.). The factual situation before us does not bring this case within the exception to the rule. This point is overruled.

Plaintiff has points of error as to the failure of the jury to make affirmative finding as to the acts of negligence submitted. Plaintiff contends the evidence establishes the act of negligence as a matter of law or that the failure to find is contrary to the great weight and preponderance of the evidence.

An examination of this record shows that there is evidence which would have supported an affirmative finding as to such acts of negligence. However, there is also evidence which supports the negative findings. In passing upon the “no evidence” points, we consider only the evidence favorable to the jury findings, and in passing upon the “great weight and preponderance of the evidence”, we consider the entire record. All points are overruled. The evidence offered by plaintiff did no more than raise a question of fact for the jury, which they answered contrary to plaintiff’s views.

We have carefully considered all of plaintiff’s remaining points of error, and finding no merit to them, they are overruled.

AFFIRMED.


source: Caselaw Access Project

author: SPURLOCK, Justice.

license: Public Domain

text:
    GORDON YATES BUILDING SUPPLIES, INC., et al., Appellants, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellee.
    No. 17768.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 5, 1976.
    Rehearing Denied Dec. 10, 1976.

      Garrett, Burkett & Bodoin, and John B. Garrett, McBryde, Bogle & Green, and John H. McBryde, Fort Worth, for appellant.
    Street, Swift, Brockermeyer, Bell & Ward, John G. Street, Fort Worth, for ap-pellee.
   OPINION

SPURLOCK, Justice.

This is an appeal from a summary judgment granted the insurer, The Fidelity and Casualty Company of New York, against its insureds, Gordon Yates Building Supplies, Inc. (Yates) and G.R.Y., Inc., in an action brought by the insurer under the declaratory judgment law, Article 2524-1, V.A.T.S., in which the insurance company sought a judgment declaring that it had no duty to defend a personal injury suit pending against Yates, one of its insureds, and that there was no insurance coverage afforded either of the insureds in connection with that suit.

We reverse and remand.

Plaintiff insurer, as movant, alleged that on August 1,1973, it issued a general liability insurance policy naming both of the defendants as insureds. It covered the period for August 1,1973, through August 1,1974. The petition of the insurer alleged that on February 20, 1974, one of the defendants delivered a load of lumber to property which adjoined the property of Buddy Ba-vousett; that Buddy Bavousett, individually and as next friend for his minor son, Buddy Joe Bavousett, filed suit against Gordon Yates Lumber Company et al. in the 141st District Court seeking to recover damages from Gordon Yates Lumber Company (which is a misnomer of defendant, Gordon Yates Building Supplies, Inc.) for improperly stacking the lumber.

It further alleged that the insurance policy afforded by the bodily insurance liability coverage did not apply to bodily injury included within the “completed operations hazard” or the “products hazard”. The “operations hazard” and “products hazard” were then quoted. Plaintiff alleges that a true copy of the Bavousett suit is attached for purposes of showing the allegations contained therein.

The attached petition shows that the Ba-vousetts are suing Gordon Yates Lumber Company and Steve Simpson, d/b/a Steve-co Builders, on account of personal injuries sustained by the minor Bavousett occasioned by the negligence of the defendants in improperly stacking the lumber in violation of certain sections of the Occupations Safety and Health Act of the U. S. Government. The attached petition was not a sworn or certified copy of the petition.

Rule 166-A(c), T.R.C.P., requires that the motion for summary judgment shall state the specific grounds therefor. To meet this requirement plaintiff alleged only two grounds for the granting of its motion for summary judgment, those being: the undisputed facts show that the bodily injury claim involved herein arose within the (1) products hazard or (2) the completed operations hazard, both of which were expressly excluded from coverage by said policy.

The summary judgment did not specify the grounds for the granting of same. It did decree that the insured’s motion for summary judgment be and is hereby granted and further decreed that the insurer is under no duty to defend the Bavousett suit.

The insureds assert the trial court erred in the granting of this summary judgment, and also erred in granting it on each of the two grounds alleged in the motion, and all other possible grounds for granting same.

The insureds assert by one of their points of error that the trial court erred in granting the summary judgment because the allegations in the suit brought by the Bavous-etts are not a part of the summary judgment proof and that such proof is necessary in order to sustain a summary judgment. They contend that the instrument attached to appellee’s pétition in this suit is nothing more than an allegation by the insurer. The insureds cite Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.Sup., 1971) in support of this point of error. That court stated in that case:

“On balance, we are convinced that orderly judicial administration will be better served in the long run if we refuse to regard pleadings, even if sworn, as summary judgment evidence. Taking this course will make for more orderly trials with fewer problems for courts and attorneys. .
“The trial process includes both the pleading and the trial stages, whether the trial stage be in summary or conventional trial proceedings. If trial judges will be diligent in requiring in summary judgment proceedings that trial be on independently produced proofs, such as admissions, affidavits and depositions, the rule we have here approved should present no problems.” See also McGlothing v. Cactus Petroleum, Inc., 394 S.W.2d 955 (Tex.Civ.App., Waco, 1965, ref., n. r. e.).

We hold that the pleadings of the insurer cannot be considered as summary judgment proof. The underlying damage suit must be proved by independently produced proofs such as admissions, affidavits, and depositions, or certified copies attached to an affidavit or served therewith, or other independently produced proof.

The insurer contends that various pleadings and motions filed by the insureds admit that the underlying damage suit has been filed and that said petition alleges that on February 20, 1974, the minor Ba-vousett was allegedly involved in a situation wherein he received personal injuries from lumber which had been stacked by defendants. None of the insureds’ pleadings allege enough details of the damage suit pleadings to constitute an admission against interest sufficient to supply the necessary proof to sustain the summary judgment.

The insurer contends that the court can take judicial notice of the suit filed in the 141st district court which is attached to its petition in the 48th district court because it is a part of the court papers filed in the 48th district court.

In Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961) that court held that mov-ants for summary judgment, who referred to the record in a prior case in the same court in their motion for summary judgment but failed to attach certified copies thereof to their motion, were not entitled to a summary judgment. See also Gist v. Stamford Hospital Dist., 541 S.W.2d 510 (Tex.Civ.App., Eastland, 1976, no writ hist.).

The insurer contends that since its original petition, to which was attached the underlying damage suit petition, was sworn to, it then became the duty of the insureds to have excepted to its pleadings at or prior to the hearing. In support of this assertion it cites Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.Sup., 1962). In that case an affidavit was filed in support of the motion for summary judgment and the affidavit included by reference “as if fully rewritten herein” a written document which was attached to one of the pleadings. Under these facts the Supreme Court properly held that said affidavit would constitute proof and was adequate except for technical defects. Under these circumstances a party opposing a motion should have excepted to the proof. In the case before us the underlying damage suit petition was never a part of the summary judgment evidence and therefore there was no duty to except to its admissibility.

The movant has the burden to establish, as a matter of law, by competent summary judgment evidence, that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup., 1970).

The movant in the case before us had the burden to affirmatively establish, as a matter of law, by summary judgment evidence (not summary judgment pleadings) upon which it could rely, each of the following: (1) that movant had issued a liability insurance policy to the insureds; (2) that a liability suit had been brought against the insureds and is pending; (3) that the allegations of the underlying damage suit petition, when considered in the light of the policy provisions, establish the fact that the insurer had no duty to defend that suit; (4) that the insureds are contending that its insurer has an obligation to provide a defense to such suit; and (5) that the movant is contending that it does not have an obligation to defend. The insurer failed to meet this burden of proof.

In Argonaut Southwest Insurance Company v. Maupin, 500 S.W.2d 633 (Tex.Sup., 1973) that court held: “The petitioner’s duty to defend is determined by the allegations of the petition when considered in the light of the policy provisions without reference to the truth or falsity of such allegations. (Citing supporting cases.)”

In Texas Nat. Corp. v. United Systems, Internat'l, Inc., 493 S.W.2d 738 (Tex.Sup., 1973) that court again pointed out the necessity of attaching a sworn certified copy to a proper affidavit. It specifically held: “We point out again the desirability of counsel’s following the wording of Rule 166-A(e). The opinion in Hidalgo clearly states that unless the case is one properly to be decided upon the pleadings, a motion for summary judgment should be supported by its own summary judgment proof as set out in the rule, and not by reference to the pleadings.”

It follows then that the insured failed to establish as a matter of law that it had no duty to defend the damage suit.

This point is sustained.

The insureds contend the court erred in adjudicating that the insurer has no obligation to G.R.Y., Inc. and that G.R.Y., Inc. should bear court costs.

The insurer’s petition does not allege any fact that would create any justiciable controversy between G.R.Y., Inc., and its insurer. It is not even named as a defendant in the liability suit. The only summary judgment proof, upon which the insurer could rely, are the deposition of Bina Minninger, the affidavit of Gordon Yates, and the depositions of Glenn Yates and Gordon Yates. Glenn and Gordon Yates testified that G.R.Y., Inc. had nothing to do with the operation of the business of Gordon Yates Building Supplies, Inc., the delivery of the lumber, or any of the events made the basis of this suit. G.R.Y., Inc. is a corporation engaged in ranching operations and related activities.

Courts do not have the power to render advisory opinions. Central Surety & Insurance Corp. v. Anderson, 445 S.W.2d 514 (Tex.Sup., 1969).

We hold that the judgment as G.R.Y., Inc. is an advisory opinion.

This point is sustained.

The insureds assert that the trial court erred in granting summary judgment on the two grounds alleged in the motion because (1) appellee did not establish as a matter of law by summary judgment evidence upon which it can rely that the “completed operations hazard” exception prevented appellee from having a defense obligation; (2) appellee did not establish as a matter of law by summary judgment evidence upon which it can rely that “products hazard” exception prevents appellee from having a defense obligation.

If we are in error in holding that the damage suit petition, attached to the insurer’s petition, is not a part of the summary judgment proof, then we hold that the insurer did not establish as a matter of law that the above two exceptions prevented the insurers from having a defense obligation.

The insurance policy here involved contains two liability coverages which are “comprehensive general insurance liability” and “comprehensive automobile liability insurance”. The policy contains the usual provisions that the insurance company has the right and duty to defend any suit against the insured seeking damages on account of bodily injury, even if any of the allegations are groundless, false or fraudulent.

The “completed operations hazard” exception provides in part:

“ ‘completed operations hazard’ includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. ‘Operations’ include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:

“(1) when all operations to be performed by or on behalf of the named insured under the contract have been completed.

“(2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or

“(3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.” (Emphasis ours.)

The “products hazard” exception is defined as follows:

“ ‘products hazard’ includes bodily injury and property damage arising out of the named insured’s products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others; . . . .”

The summary judgment evidence contained in the depositions of Glenn Yates and Gordon Yates and the affidavit of Gordon Yates is to the effect that on February 19, 1974, lumber was ordered on behalf of Steveco, Inc., for its use in the framing of a new house located on Vanessa Street in Fort Worth. Mr. Hunt, the framing contractor, placed this order. The parties here involved had been doing business with each other for about 30 years. They had an oral agreement that Yates would furnish all the lumber and building supplies it had available for all the houses built by Steve Simpson or Steveco, individually or through another company. The purchasers agreed they would not order lumber or building supplies from any other company. The lumber ordered on February 19, 1974, was to be delivered in two loads and then the operation would be completed as far as this one house was concerned.

At the time of the depositions Steveco was building 25-30 houses. The first of the two loads of lumber was delivered on February 20,1974, the date of the accident. On February 22, 1974, the second load of lumber was delivered to the same address and both loads were used by Steveco in completing the framing of the house. With the delivery of this second load of lumber, the order which Mr. Hunt had placed on February 19, 1974, was completed.

We hold that under this evidence a fact issue was raised concerning whether or not all the operations to be performed, by or on behalf of the named insured under this contract it had with Steveco, had been completed and whether or not this insured had performed all the operations to be performed by it at the site of the operations on the date of the accident.

In Lloyds Casualty Insurer v. McCrary, 149 Tex. 172, 229 S.W.2d 605 (1950) and Employers Mut. Cas. Co. v. Hefner, 254 S.W.2d 565 (Tex.Civ.App., Dallas, 1952, no writ hist.) those courts held that further work to be done at a future date at the site of the operations prevented the “completed operations hazard” from being operative.

We will next examine the “products liability” exception.

“ ‘Products Liability’, to the average person, refers to liability arising out of the use of, or existence of any condition in goods or products manufactured, sold, handled or distributed by the insured.” Heyward v. American Casualty Co. of Reading, Pa., D.C., 129 F.Supp. 4.

In general the “products hazard” exception applies only if the injury is caused by a “defective product”. Lessak v. Metropolitan Casualty Ins. Co. of New York, 168 Ohio St. 153, 151 N.E.2d 730 (1958); Cooling v. United States Fidelity and Guaranty Co., 269 So.2d 294 (La.Ct. of Appeal, 1972); Brant v. Citizens Mutual Automobile Insurance Co., 4 Mich.App. 596, 145 N.W.2d 410 (1966); Insurance Co. of N. A. v. Electronic Purification Co., 67 Cal.2d 679, 63 Cal.Rptr. 382, 433 P.2d 174 (1967); Employers’ Liability A. Corp. v. Youghiogheny & O. Coal Co., 214 F.2d 418 (U.S.Ct. of App., 8th Cir., 1954); McGinnis v. Fidelity & Casualty Company of New York, 276 Cal.App.2d 15, 80 Cal.Rptr. 482 (1969).

The allegations in the damage suit petition allege that Yates and Steveco improperly stacked the lumber so that the stack of lumber was unstable causing it to fall and injure the minor plaintiff. There are no allegations that the lumber is defective, or any warranty was made in connection therewith.

We hold the insurer failed to meet its burden of proof to establish as a matter of law that the “products hazard” exception in its policy relieved it of its duty to defend the law suit.

This point of error is sustained.

Judgment reversed and remanded to the trial court for trial on the merits.


author: REYNOLDS, Justice.

text:
    C. W. LOUIS and Loy’s Building, Inc., Appellants, v. B. B. BLALOCK and Blalock Landscape Company, Inc., Appellees.
    No. 8738.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 8, 1976.
    Rehearing Denied Dec. 6, 1976.

      Clinton J. Wofford, Jr., and Diamond J. Pantaze, Dallas, for appellants.
    Durward D. Moore, Dallas, for appellees.
   REYNOLDS, Justice.

A take-nothing judgment was rendered non obstante veredicto in this suit seeking damages for slander of title to real property and for malicious prosecution of a civil suit. The absence of evidence to raise all of the essential elements constituting the slander of title alleged and the failure to show an interference with property by reason of the civil suit require that the judgment be affirmed.

Loy’s Building, Inc., a Texas corporation whose president and controlling stockholder is C. W. Louis, owned a tract of real property situated in Dallas County. The tract, consisting of 18,000 square feet, fronts Garland Road for sixty feet and extends in a southerly direction for three hundred feet. Adjacent to and east of this realty is a tract of land owned by R. A. Cooper and leased to Blalock Landscape Company, Inc., a corporation owned by B. B. Blalock and engaged in the nursery business. On each tract of land is a building used for business purposes.

On 15 February 1971, Loy’s contracted to sell the front 12,000 square feet of its property to Pat L. Davis and Carl L. Davis for $65,000 cash. Among the conditions of sale were that Loy’s would furnish a current survey, convey the property free and clear of any and all encumbrances except for any restrictive covenants and utility easements, and that a policy of title insurance would be issued through Hexter-Fair Title Company, whose willingness to do so would be conclusive evidence of the marketability of title.

When the surveyor, H. Lou Horne, Jr., went upon Loy’s property, he noticed “(s)pecifically there was a trail where people were cutting off the property on the south end, driving up and going around the building and then going out to the front of the building. This was not only used by Mr. Blalock, it was used by ourselves and others, too, at this particular time.” The surveyor notified Mrs. Mary Gibbs, a closer for the title company, “to the effect that there was this existing passage across the property that should be blocked.” The title company then proposed to issue the title policy subject to a physical and apparent easement.

On advice of counsel, Loy’s constructed a fence on the line between its and Cooper’s properties at a cost of $680 in an attempt to eliminate a claim of easement. Thereafter on 13 April 1971, Blalock Landscape Company, Inc., instituted suit against C. W. Louis, and later amended its pleadings to include Loy’s, to establish an easement by prescription extending twenty to twenty-five feet onto Loy’s property and for two hundred to two hundred fifty feet along the boundary line for a common private roadway said to exist between the properties, and to manda-torily enjoin Louis and Loy’s from maintaining the fence between the two properties. The record does not show that any injunctive process was issued. Summary judgment was rendered 16 February 1972 decreeing that Blalock take nothing by its suit and that Louis and Loy’s recover their costs.

Meanwhile and prior to 11 May 1971, the Davises declined to consummate the contract of sale because, in the words of Carl S. Davis, “we couldn’t get a clear title,” and, in addition, the property was altered by the erection of the fence. Later on 15 May 1972, Loy’s entire tract of 18,000 square feet was sold for $50,000. Subsequently on 20 February 1973, Louis and Loy’s, hereinafter denominated Loy’s for simplicity, brought this suit against Cooper, Blalock and Blalock Landscape Company, Inc., seeking damages for slander of title to real property and for malicious prosecution of the 13 April 1971 civil suit. By stipulation, B. B. Blalock and his corporation would be jointly liable for any recovery against either, and they will be collectively referred to as Blalock.

Following introduction of evidence before a jury, Blalock’s motions for an instructed verdict were overruled and the cause was submitted to the jury. Corresponding to the numbered special issues, the jury found that: (1) Blalock stated he claimed an easement by prescription on the real property owned by Loy’s, which (2) was false; (3) Blalock’s action in asserting a prescriptive easement was actuated by malice, and (4) was the proximate cause of the loss of the sale to the Davises; (5) the back 6,000 square feet of Loy’s property had on May 23,1972, a fair market value of $12,000; (6) the damage for the loss of the sale was $27,680; and (7) exemplary damages should be assessed against Blalock in the amount of $23,500.

The jury also found that: (8) Blalock acted without probable cause in prosecuting the previous lawsuit, and (9) was actuated by malice; (10) Loy’s suffered actual damages (11) in the sum of $1,500; (17) Blalock consulted an attorney regarding the institution of the lawsuit, but (18) he did not in good faith make a full and true disclosure to his attorney of all material facts within his knowledge, and (19) did not act in good faith and on the advice of his attorney in instituting the lawsuit. By their answers to special issues twelve through sixteen, the jury absolved Cooper of liability.

Loy’s motion for judgment on the verdict was denied. Blalock’s motion for judgment non obstante veredicto was granted, the court rendering a take-nothing judgment from which Loy’s has appealed.

On appeal, no complaint is made to that portion of the judgment in favor of Cooper, and that aspect will not be further noticed. Utilizing twelve points of error, Loy’s assigns error to the actions of the trial court in not rendering judgment on the verdict and in rendering judgment non obstante veredicto.

1. Slander of Title Action

To recover on the slander of title to real property action, Loy’s had the burden to allege and prove that (1) it possessed an estate or interest in property about which (2) Blalock uttered and published slanderous words which (3) were false and (4) malicious, and (5) because of which Loy’s sustained special damages. See, e. g., Walker v. Ruggles, 540 S.W.2d 470, 473 (Tex.Civ.App. Houston [14th Dist.] 1976, no writ), and cases there cited. The slanderous words which Loy’s alleged, and the jury found, that Blalock falsely and maliciously uttered and published were that Blalock stated he claimed an easement by prescription over Loy’s property. An easement by prescription is the open, notorious, hostile, adverse, uninterrupted, exclusive and continuous use of the servient estate for a period of more than ten years, and the absence of any of these elements is fatal to a prescriptive claim. Davis v. Carriker, 536 S.W.2d 246, 250 (Tex.Civ.App. Amarillo, 1976, writ ref’d n.r.e.).

Preliminarily to viewing the evidence in the light most favorable to Loy’s position, it must be noted that a claim, either oral or written, asserted in the course of a judicial proceeding, cannot be made the basis of a civil action for slander of title. See Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909, 912 (1942), citing, among other authorities, Tsesmelis v. Sinton State Bank, 53 S.W.2d 461 (Tex.Com.App.1932). For this reason, Blalock’s allegations of a prescriptive easement pleaded in his prior civil suit may not be used as proof that Blalock had previously stated that he claimed an easement by prescription over Loy’s property.

Aside from these judicial allegations, Loy’s relies only upon selections from the testimony given by surveyor Horne, Mrs. Gibbs and Blalock to establish Blalock’s public utterance of a claim of an easement by prescription. Chosen from Horne’s testimony is his response, when asked if Blalock made any statements with respect to the use of Loy’s property, that, “I don’t recall the exact conversation but . . I am sure that we did discuss various features of the property there and the fact that he was using this coming through.” Mrs. Gibbs’ selected testimony was: “The surveyor told me that the adjacent property owner was going across this land to get to his nursery and using this property for ingress and egress to his land. . . . ” Isolated from Blalock’s testimony is his acknowledgment that he told Horne, “Why, you know I have always used this thing over the years, I have always been going in and out.”

Obviously, this testimony falls far short of any claim of an easement by prescription publicly uttered by Blalock; at most, it merely shows a statement of use in common with others for some period of time and, as the trial court correctly charged the jury, mere use will not create an easement. The testimony does no more than create a mere surmise or suspicion or conjecture that Blalock may have publicly uttered a claim of an easement by prescription and it, in legal contemplation, is not any evidence of the fact alleged and required to be proved. Cactus Drilling Company v. Williams, 525 S.W.2d 902, 909 (Tex.Civ.App. Amarillo 1975, writ ref’d n.r.e.).

When there is no evidence upon which the jury could have made its finding on an issue vital to the cause of action, a trial court is warranted in rendering judgment non obstante veredicto. Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974). Therefore, because there is no evidence of probative force to prove that Bla-lock uttered and published a claim of an easement by prescription, the court properly rendered judgment non obstante veredic-to on Loy’s slander of title to real property action.

2. Malicious Prosecution Action

Loy’s alleged that Blalock’s prior civil suit was maliciously instituted without probable cause and damaged Loy’s in the sum of the $1,500 it expended for attorney’s fees in successfully defending the suit. Loy’s did not allege either that the injunc-tive process Blalock sought was issued or that the suit prevented the sale of Loy’s property to the Davises.

Malicious prosecution of a civil suit is the institution of the suit with malice and without probable cause. Morris v. Hargrove, 351 S.W.2d 666, 667 (Tex.Civ.App. Austin 1961, writ ref’d n.r.e.). Texas law has long recognized that everyone is liable to be harassed and injured in his property and feelings by unfounded suits, but that this is not an injury for which the one sued can have legal redress, except to visit the costs upon the party suing, unless there is the wrongful suing out of some process by which property is seized and damage sustained. Smith v. Adams, 27 Tex. 28, 29-30 (1863). Of course in the ordinary case where no wrongful act other than the institution of a groundless suit is complained of, the mere recovery of costs by the successful party leaves uncompensated his injury for any indirect loss and counsel fees and his inconvenience for loss of time and annoyance; however, this injury and inconvenience, resulting from a resort to the judicial process, is occasioned by the policy of the law to mete out something less than natural justice might demand rather than to increase the risks attending and discouraging resort to the legally-constituted tribunals and at the same time add to the difficulties and intricacies of ordinary litigation. Salado College v. Davis, 47 Tex. 131, 135-36 (1877).

Thus, for Loy’s to maintain an action on Blalock’s civil suit after it was terminated in Loy’s favor, Loy’s must have suffered some interference, by reason of the suit, with its property. Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153 (1920). Here, however, Loy’s neither alleged nor offered proof that the suit itself caused any interference with its property. Moreover, the unsuccessful attempt by Blalock to have an injunction issued did not constitute an actionable interference with Loy’s property. In Johnson v. King & Davidson, 64 Tex. 226 (1885), there was an actual issuance of attachment, but the failure to seize any property under it was held fatal to the recovery of damages for maliciously suing out the attachment without probable cause. In short, Blalock’s civil suit was, in the words of Salado College v. Davis, supra at 136, “an ordinary civil suit, in which no extraordinary process was sued out, and, if the indirect effect of the suit was to interfere with the sale of the property which was to some extent the subject-matter of litigation, this is not such an injury as the law regards or makes actionable.”

A trial court is also warranted in rendering judgment non obstante veredicto if a directed verdict would have been proper. Rule 301, Texas Rules of Civil Procedure. When Loy’s failed to allege and prove an interference with its property by reason of Blalock’s civil suit, the court would have been justified in granting Blalock’s motion for an instructed verdict and, therefore, the subsequent rendition of judgment non ob-stante veredicto on Loy’s malicious prosecution of a civil suit action was proper.

Accordingly, all of Loy’s points of error are overruled. We do not reach Blalock’s cross-point challenging the admission of certain evidence.

The judgment is affirmed.


author: PER CURIAM.

text:
    George E. HUTCHERSON et al., Appellants, v. Auba V. HINSON et al., Appellees.
    Nos. 2171 and 2172.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 10, 1976.

      Joe E. Griffith, Crockett, for appellant George E. Hutcherson.
    Roy W. Hill, Fairfield, for appellant Juanita Hutcherson.
    Jerry L. Calhoon, McDonald, Calhoon & Kolstad, Hoyt Johnston, Johnston & Johnston, Palestine, for appellees.
   PER CURIAM.

Appellant, George E. Hutcherson, and appellant, Juanita Hutcherson, have each filed separate motions for extension of time to file transcript in this case.

The record reveals that neither motion is sworn to nor accompanied by any sworn proof to support the allegations set out in the motion showing a reasonable explanation why the transcript was not filed on time as required by Rule 386, Texas Rules of Civil Procedure. Rule 21c of the Texas Rules of Civil Procedure, which became effective January 1, 1976, allows the Court of Civil Appeals more discretion in extending the time for filing a transcript or statement of facts than those courts previously had. However, 21c, T.R.C.P., does not dispense with the necessity for the movant to make sufficient proof under oath in the motion for extension or have some affidavit attached thereto showing “a reasonable explanation” why the record was not filed on time.

It is the opinion of the court that the facts alleged in the motions and relied upon by the movants as constituting a reasonable explanation for permitting each of them to file the transcript late must be proved by affidavit or by some other legitimate form of evidence that can be considered by an appellate court. Without such proof we are not authorized to grant the extension of time prayed for. Home Fund, Inc. v. Garland, 520 S.W.2d 939 (Tex.Civ.App., Fort Worth 1975, writ ref’d n. r. e.); Carter v. City of Fort Worth, 357 S.W.2d 581 (Tex.Civ.App., Fort Worth 1962, writ ref’d n. r. e.).

Therefore, the court overrules both motions for extension of time to file the transcript for the reasons above stated.


author: HALL, Justice.

text:
    Bryan BEAVERS, Appellant, v. Nelda Jean BEAVERS, Appellee.
    No. 5649.
    Court of Civil Appeals of Texas, Waco.
    Nov. 10, 1976.
    Rehearing Denied Dec. 2, 1976.
    See 545 S.W.2d 29.

      Sue Stepp and A1 Witcher, Ñaman, Howell, Smith & Chase, Waco, for appellant.
    Samuel R. Jones and F. Ben Selman, Jr., Jones, Francis & Selman, Inc., Waco, for appellee.
   HALL, Justice.

The appellee filed this suit for divorce in McLennan County on December 22, 1975. She pleaded that she was a resident of McLennan County and that the appellant was a resident of Falls County. The appellant filed a plea in abatement alleging that, under the provisions of V.T.C.A., Family Code § 3.21, the suit could not be maintained in McLennan County because the appellee was not a resident of the County for the 90-day period preceding the filing of suit. The plea was heard and overruled on January 9,1976. The case was heard on its merits on the original pleadings in March, 1976. Judgment was rendered in May, 1976, divorcing the parties and dividing their property. In the judgment the court expressly found that the appellee had been a resident of McLennan County for 90 days preceding the date the suit was filed. The appellant contends the evidence conclusively establishes the validity of his plea in abatement, and that accordingly, the court erred in overruling it. We agree, and reverse the judgment.

In its pertinent parts, Family Code § 3.21 provides, “No suit for divorce may be maintained unless at the time suit is filed the petitioner or the respondent has been a . resident of the county in which the suit is filed for the preceding ninety-day period.” A mere constructive residence will not satisfy this statute. It requires an actual, physical, continuous living in the county of suit by one of the parties for the period specified, coupled with a good-faith intent to make that county home. Wilson v. Wilson, 494 S.W.2d 609, 611 (Tex.Civ.App., Hou.14th 1973, writ dism.); Struble v. Struble, 177 S.W.2d 279, 285 (Tex.Civ.App., Amarillo, 1943, no writ). Of course, the continuity of residence is not broken by a simple, temporary absence from the county. Therwhanger v. Therwhanger, 175 S.W.2d 704, 707 (Tex.Civ.App., Eastland 1943, no writ).

The evidence adduced on the plea in abatement shows that the parties had been married ten years. During all this time, the appellee’s place of employment was in the City of Waco, in McLennan County. Their homeplace was in Falls County, and the appellant still lives there. In July, 1975, the appellee, in her words, decided to “set up a residence” at 2839-B Madison Street in the City of Waco, and began paying one-half of the rent on an apartment at that address which was leased by a woman friend of hers. She told some creditors to send her bills to this address and at least one did so. She did not change her address from Falls County with the postal authorities, and she did not tell the appellant, or her employer, or any of her friends and neighbors in Falls County, that she had changed her residence to McLennan County. There is no evidence she ever stayed at the apartment. She continued to stay “each and every night” at the home in Falls County, until she separated from the appellant on December 18, 1975. On that day, she moved her furniture and belongings, and her pet animals, to an address in the City of Hewitt, in McLennan County. She testified, “So far as I am concerned, I have been a resident of McLennan County since the latter part of July, at which time I set up a residence [in Waco] at [the apartment].” She also said that the only reasons she returned to the home in Falls County each day and spent the nights there was to “tend to my animals,” and because she feared Mr. Beavers and was afraid he would physically abuse her, as he had done twice before, if she did not return.

The facts of our case are closely akin to those in Schyrock v. Schyrock, 353 S.W.2d 50 (Tex.Civ.App., Houston 1962, no writ hist.), which are set forth in that case as follows:

Appellant and appellee were married in April, 1959. Appellant was buying a home at Kountze in Hardin County. After their marriage appellee moved into the home. Unquestionably in the light of all the facts, adduced, appellee up until May 26, 1960 had his residence in Kountze. He does not contend otherwise. He contends that he changed his residence to Harris County about May 26, 1960. He filed his petition for divorce in Harris County December 16,1960. In his petition he alleges he and appellant lived together as husband and wife until October 12, 1960, when he was forced to separate from appellant. On said October 12 his wife was living in Kountze in the home where she and appellee had lived together since their marriage. To establish residence in Harris County appellee testified he went to Houston May 26 intending to live there. He rented a room by the week in a home and continued to pay rent each week and he stayed there when he was in Houston. He was away a good deal of the time because his work required him to travel. He notified his company of his change of address. He never told his wife of any intention to separate from her or of his intention to establish a residence in Houston. After he says he moved to Houston he admits he spent a few nights in the home at Kountze. As late as the early part of October, 1960 he went to Kountze, went to a dance at the Country Club and then spent the night in the home there.

In Schyrock, the court held that the evidence did not establish the appellee’s residence in Harris County for a period of six months immediately prior to filing suit (as required at that time by the applicable statute). It said, “While appellee testified he rented the room in Houston intending to make this his home, he also alleged in his petition and testified he did not separate from his wife, who lived in Kountze, until October, 1960. Too, after he rented the room, which he rented only by the week, he spent a few nights in the home in Kountze. All of the time he failed to tell his wife he had decided to move their home to Houston. While we recognize a husband has a right to choose the place of residence, we do not feel that renting a room by the week in another city without saying anything to his marital partner about it, and while he is not separated from her, is sufficient to show he has in fact established a residence different from that where his wife lives.”

We recognize that the appellant in our case had the burden of proof on his plea in abatement, and that we must therefore view the proof on the residency question in the light most favorably supporting the ap-pellee’s position and the court’s finding. Considered in this fashion, the evidence nevertheless shows as a matter of law that the appellee did not actually reside in McLennan County, within the meaning of Family Code § 3.21, until December 18, 1975, only five days before this suit was filed.

The judgment is reversed. The cause is remanded to the trial court and is abated.