author: DUNAGAN, Chief Justice.

text:
    FORT WORTH STEEL AND MACHINERY COMPANY et al., Appellants, v. Michael Darby NORSWORTHY, Appellee.
    No. 1157.
    Court of Civil Appeals of Texas, Tyler.
    July 27, 1978.
    Rehearing Denied Aug. 31, 1978.

      Michael L. Dunn, Kenley, Boyland, Hawthorn, Starr & Coghlan, Larry W. Starr, Mathew Dove, Roberts, Harbour, Smith, Harris, French & Ritter, Otto A. Ritter, Longview, for appellants.
    Rick McPherson, Crawford Parker, Jr., Carthage, for appellee.
   DUNAGAN, Chief Justice.

This is a venue action in which the appellants have appealed from an order overruling their pleas of privilege.

Appellee, plaintiff in the court below, instituted this action in the 123rd District Court of Panola County, Texas against Fort Worth Steel & Machinery Company, hereafter referred to as “Port Worth Steel,” and Refrigeration Engineering Corporation, hereafter referred to as “Refrigeration.”

This suit arises out of personal injuries allegedly sustained by Michael Darby Nor-sworthy, appellee, at the Rite-Care Poultry Processing Plant in Panola County, Texas on December 21,1971. On that date, appel-lee was working alone in the “ice house” of the Rite-Care plant. A screw-type convey- or system in the “ice house” was utilized to carry ice to other portions of the plant. A grill, consisting of four ½" steel bars, covered the trench in which the conveyor was located. As the appellee stood on the grill, it suddenly “gave way” and his right leg became entangled in the conveyor below, severing it four inches below the hip.

The conveyor system and grill were designed and manufactured by Fort Worth Steel prior to being sold to Refrigeration, who then installed the system and grill in the Rite-Care plant. Appellee first seeks recovery for his personal injuries against both appellants on the grounds of strict liability in tort, alleging that the conveyor system and grill were defectively designed so as to be unreasonably dangerous. Additionally, appellee alleges that Refrigeration is liable for negligent installation of the system.

Both appellants filed pleas of privilege; Fort Worth Steel. to be sued in Tarrant County, Texas and Refrigeration to be sued in Bexar County, Texas. Appellee, by his amended controverting plea, asserted that venue was properly placed in Panola County, Texas on the basis of sections 9a, 23, and 29a of Article 1995, Tex.Rev.Civ.Stat.Ann. However, in his brief appellee waived his allegation that venue is proper in Panola County, Texas under section 29a. The venue hearing was before the court without a jury and the trial court overruled both pleas of privilege. Appeal therefrom has been timely perfected to this court by both Refrigeration and Fort Worth Steel. No findings of fact or conclusions of law were requested by any party and none were filed.

Appellants, Fort Worth Steel and Refrigeration, contend in their briefs that venue is not properly placed in Panola County, Texas under section 23 of Article, 1995, Tex. Rev.Civ.Stat.Ann. Refrigeration also asserts that venue may not be maintained in Panola County, Texas against them under section 9a. It is uncontroverted that the residence of Fort Worth Steel is Tarrant County, Texas and that the principal place of business and residence of Refrigeration is Bexar County, Texas.

The general rule of venue is that a defendant must be sued in the county of his domicile. In order to defeat the defendant’s plea of privilege to be sued in the domiciliary county, the burden is on the plaintiff to plead and prove by a preponderance of the competent evidence that the case comes within one of the statutory exceptions. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (Tex.Comm.App.1935, holding approved); Berry v. Pierce Petroleum Corporation, 120 Tex. 452, 39 S.W.2d 824 (Tex.Comm.App.1931, holding approved); General Motors Corporation v. Courtesy Pontiac, Inc., 538 S.W.2d 3 (Tex.Civ.App.—Tyler 1976, n. w. h.); Beall Brothers, Inc. v. Benton, 478 S.W.2d 157 (Tex.Civ.App.—Tyler 1972, n. w. h.); Ideal Baking Company v. Boyd, 417 S.W.2d 613 (Tex.Civ.App.—Tyler 1967, n. w. h.); Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., 389 S.W.2d 694 (Tex.Civ.App.—Tyler 1965, n. w. h.).

The burden imposed upon the plaintiff is one which is predicated on the belief that the defendant’s right to be sued in the county of his domicile is an invaluable right and this right will be vitiated only when the evidence clearly supports the maintenance of venue in some other county. The right to be sued in one’s own county is a right jealously guarded by the court and exceptions to the general rule must clearly appear. Unless the plaintiff clearly discharges his burden of proof, the defendant is entitled to have the case transferred to the county of his domicile. Goodrich v. Superior Oil Company, 150 Tex. 159, 237 S.W.2d 969 (1951); Burtis v. Butler Bro’s., 148 Tex. 543, 226 S.W.2d 825 (1950); Seldon v. Green, 498 S.W.2d 285 (Tex.Civ.App.—Tyler 1973, n. w. h.); Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., supra.

The venue facts which the plaintiff must allege and prove to defeat a plea of privilege are those stated in the particular exception of Article 1995 applicable to the cause of action as alleged. The burden is on the plaintiff to establish those venue facts by a preponderance of the competent evidence. Wire Rope Corporation of America, Inc. v. Barner, 446 S.W.2d 361 (Tex.Civ.App.—Tyler 1969, n. w. h.). A prima facie case, alone, is not sufficient. Compton v. Elliott, supra; Lynch v. Millican, 304 S.W.2d 410 (Tex.Civ.App.—Waco 1957, n. w. h.). Venue may not be established by the plaintiff on the basis of mere implication. Burtis v. Butler Bro’s, supra; Socony Mobil Company, Inc. v. Southwestern Bell Telephone Co., 518 S.W.2d 257 (Tex.Civ.App.—Corpus Christi 1974, n. w. h.); Reynolds & Huff v. White, 378 S.W.2d 923 (Tex.Civ.App.—Tyler 1964, n. w. h.); Key v. Davis, 554 S.W.2d 60 (Tex.Civ.App.—Amarillo 1977, n. w. h.); T. L. James & Company v. Waldrep, 385 S.W.2d 866 (Tex.Civ.App.—Fort Worth 1965, n. w. h.); Ideal Baking Company v. Boyd, supra. This requirement is supported by considerations of public policy grounded upon the premise that otherwise it would be too easy by mere allegation and statements of conclusion to defeat the defendant’s right to be sued at his domicile. McDonald, Texas Civil Practice, Vol. 1 sec. 4.55(b), pp. 612, 613.

Appellee in the instant case relies, in part, upon section 23 of the venue statute. No attempt was made to plead or prove that either appellant had its principal office in Panola County, Texas; or that either had an agent or representative in such county. Venue, therefore, may be maintained in Panola County under section 23 only by establishing that the “cause of action or part thereof” arose in that county. Prior to reaching the question of where the “cause of action or part thereof” arose, it must first be determined whether or not the ap-pellee, by a preponderance of the competent evidence, established that he did in fact have a cause of action against appellants. Wire Rope Corporation of America, Inc. v. Barner, supra. Unless there is, in fact, a cause of action, there could be no “part thereof” arising anywhere. Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., supra.

Appellee first seeks to impose liability on both appellants based on strict liability in tort. In order to sustain his burden of proof, the appellee was required to establish that: (1) appellant sold the product in a defective condition, (2) the product reached the appellee without substantial change, and (3) the defective condition of the product caused the injury to appellee. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967); John Deere Company v. Ramirez, 503 S.W.2d 382 (Tex.Civ.App.—Amarillo 1973, writ dism’d); Wright v. Climatic Air Sales, Inc., 527 S.W.2d 518 (Tex.Civ.App.—Houston [1st Dist.] 1975, n. w. h.). The Supreme Court stated in Technical Chemical Company v. Jacobs, 480 S.W.2d 602 (Tex.1972): “[i]n strict liability cases, proof of negligence is excused; but neither Section 402A [Restatement (Second) of Torts (1965)], nor our former decisions have excused proof that the defect in the product was the cause of the injuries.” Proof of causation is a necessary element of a strict liability case. Technical Chemical Company v. Jacobs, supra; Pittsburgh Coca-Cola Bottling Works of Pittsburgh v. Ponder, 443 S.W.2d 546 (Tex.1969); Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969); Menking v. Bishman Manufacturing Company, 496 S.W.2d 762 (Tex.Civ.App.—Corpus Christi 1973, n. w. h.).

Appellants contend that the court below erred in overruling their pleas of privilege because there is no evidence to support the maintenance of venue in Panola County, Texas under section 23 of Article 1995, Tex.Rev.Civ.Stat.Ann. In determining this “no evidence” point, it is the duty of this court to look only to the evidence and reasonable inferences therefrom which are favorable to the judgment of the court below. General Motors Corporation v. Courtesy Pontiac, Inc., supra; Ralston Purina Company v. Wiseman, 467 S.W.2d 669 (Tex.Civ.App.—El Paso 1971, n. w. h.); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 364 (1960).

In the instant case, appellee called Dr. Bart Childs, a professor of mechanical engineering at Texas A & M University, as an expert witness. Dr. Childs testified that the grill and conveyor system had a number of design defects which rendered them defective and unreasonably dangerous. There was also evidence presented from which it could be concluded that the grill and conveyor system reached the appellee in a substantially unchanged condition. The appel-lee failed, however, to prove any causal link between the design defects established by the testimony of Dr. Childs and the resulting injuries.

The appellee testified in his deposition that the bar, upon which he was standing, suddenly “gave way.” He was unable to explain why the ½" steel bar parted, thereby causing him to fall into the conveyor. Mr. Crowley was the maintenance man at the Rite-Care plant at the time this accident occurred. He stated that immediately after the accident, the steel bar was loose at one end and bent downward into the trench where the conveyor system was located. He did not examine the bar closely however and was unable to explain why the bar parted. Dr. Childs testified that metallurgical tests could have determined exactly why the solid steel bar broke loose, but that such tests had not been performed. Dr. Childs did offer an opinion, which he admitted was speculation on his part, that the grill could have been weakened by “stress reversal.”

Appellee’s reliance on this testimony is an attempt to prove the causal connection between the alleged defects and the resulting injury by pyramiding inferences. Dr. Childs began with the premise that all bearings generate “some heat.” There is no evidence in the record here as to how much heat was generated by the bearings in this conveyor; Dr. Childs inferred that it was sufficient to melt ice. Dr. Childs then concluded that the ice refroze into a “glob” which was forced up when operations were resumed. There was no direct evidence offered that the ice did melt in this conveyor system nor that the ice refroze and then pushed up on the grill. Dr. Childs then drew a third inference; that the ice pushing up, along with the weight of the men and ice above pushing down, created “stress reversal” in the grill which weakened it. Finally Dr. Childs concluded that in all likelihood the continuity of the bar was interrupted because of such stress reversal and resulted in the injuries to the appellee.

There is no direct evidence allowing us to pyramid these inferences; consequently, the testimony raises at best a mere surmise or suspicion. Systech Financial Corporation v. Vaughn, 558 S.W.2d 105 (Tex.Civ.App.—Tyler 1977, n. w. h.). An inference is a deduction which the reason of the jury (or trier of fact) makes from the facts proved. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898); Strain v. Martin, 183 S.W.2d 246 (Tex.Civ.App.—Eastland 1944, n. w. h.). It is well settled that an issue of fact may be raised by circumstantial evidence. However, where such evidence is relied upon, the testimony must establish the circumstances which support the inference drawn. Bass v. General Motors Corporation, 491 S.W.2d 941 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.).

“. . . the circumstances relied on must have probative force sufficient to constitute the basis of a legal inference as to the existence of the fact; the circumstances in question may not amount to merely a surmise, suspicion, or purely speculative conclusion as to the fact’s existence. Moreover, the circumstances relied on must themselves be proved by direct evidence; they may not be shown by inference or presumption.” 24 Tex. Jur.2d Sec. 728 pp. 399, 400.

The process of piling one inference upon another is not permitted under the law and such testimony amounts to no evidence. Texas Sling Company v. Emanuel, 431 S.W.2d 538 (Tex.1968); Carroll v. Ford Mo tor Company, 462 S.W.2d 57 (Tex.Civ.App.—Houston [14th Dist.] 1970, n. w. h.).

“If the evidence merely shows enough to satisfy an inference that the circumstances may have existed, from which by a further process of logic it is sought to draw a second inference as to the truth of a basic fact proposition, the connection is too attenuated to raise a jury issue.” Bass v. General Motors Corporation, supra at 942.

See also Bledsoe v. Yarborough, 422 S.W.2d 222 (Tex.Civ.App.—Tyler 1967, n. w. h.); Mobile, Inc. v. Cone, 457 S.W.2d 175 (Tex.Civ.App.—Tyler 1970, ref’d n. r. e.).

Unless the plaintiff meets the burden of proof imposed upon him to clearly establish the existence of an exception to the general rule of venue, the defendant is entitled to have the cause transferred to his county of domicile. Seldon v. Green, supra; Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., supra. An equal doubt between an exception to the venue rule and the defendant’s right to be sued in his home county must be resolved in favor of the defendant’s right. Goodrich v. Superior Oil Company, supra; Seldon v. Green, supra; First National Bank of Yorktown v. Pickett, 555 S.W.2d 547 (Tex.Civ.App.—Corpus Christi 1977, n. w. h.). Ap-pellee has failed to show that venue is properly placed in Panola County, Texas under section 23, Article 1995, Tex.Rev.Civ.Stat. Ann.

In addition to section 23, appellee contends that venue is properly placed in Pano-la County, Texas, as against appellant Refrigeration, under section 9a, Article 1995, Tex.Rev.Civ.Stat.Ann. Appellee alleges that Refrigeration negligently installed the grill over the trench in which the conveyor was located. Refrigeration asserts, in their second point of error, that appellee failed to prove the venue facts required and that there is no evidence to support the maintenance of venue in Panola County under section 9a.

The venue facts required to be established under Section 9a are (1) that an act or omission of negligence occurred in the county where suit was filed; (2) that such act or omission was that of the defendant, in person, or that of his servant or representative acting within the scope of his employment; and (3) that such negligence was a proximate cause of plaintiff’s injuries. Reynolds & Huff v. White, supra, Calhoun v. Padgett, 409 S.W.2d 890 (Tex.Civ.App.—Tyler 1966, n. w. h.); Bledsoe v. Yarborough, supra; Seldon v. Green, supra; McDonald, Texas Civil Practice, Vol. 1, Sec. 4.17.2, pp. 476-480.

Refrigeration installed the grill by using metal clips on every third cross member. Although this acted to strengthen and add stability to the cross members, Dr. Childs concluded that this manner of installation made the grill as a whole twice as weak. This is the full extent of the evidence offered to prove an act or omission of negligence by Refrigeration. Dr. Childs’ testimony establishes nothing more than the fact that the method of installation used made the grill stronger in some ways and weaker in others. The fact that the grill as a whole would be twice as strong by using a different manner of attachment, standing alone, is no evidence of negligence. There are few machines or jobs which could not be done better; merely because an act is not done perfectly, is not evidence that it was done negligently. Since no standard of care is established, it is left to speculation or conjecture as to whether or not the manner of installation employed by Refrigeration constituted negligence.

“Negligence may not be established by mere conjecture or guess, nor may it be presumed. It must be proved.” Bowen v. East Texas Hospital Foundation, 400 S.W.2d 843 (Tex.Civ.App.—Tyler 1966, ref’d n. r. e.). See also Bledsoe v. Yarborough, supra. The mere fact that the plaintiff was injured or that an accident occurred is not evidence of negligence or that any injuries were proximately caused by actions or omission of the defendant. Bowen v. East Texas Hospital Foundation, supra; Calhoun v. Padgett, supra; Seldon v. Green, supra; Bledsoe v. Yarborough, supra. When the burden of proof is on the plaintiff to show that the injury was negligently caused by the defendant, it is not sufficient to show the injury, together with the expert opinion that it might have occurred from negligence and many other causes. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (Tex.1949). As this Court stated in Bledsoe v. Yarborough, supra at 227: “Of course, it goes without saying that a mere speculative conclusion cannot form the basis of a finding of negligence and proximate cause.”

We have examined the statement of facts in a light most favorable to the judgment and have indulged every reasonable inference thereof, yet we believe the evidence compels the conclusion that venue cannot be sustained in Panola County, Texas. We reverse the judgment of the trial court and herein render judgment sustaining the pleas of privilege of appellants, Fort Worth Steel and Machinery Company and Refrigeration Engineering Corporation, and order the respective causes transferred to a district court of Tarrant County, Texas, and a district court of Bexar County, Texas, in accordance with Rule 89, T.R.C.P.


source: Caselaw Access Project

author: PEDEN, Justice.

license: Public Domain

text:
    Paul VERRET, Appellant, v. Carolyn VERRET, Appellee.
    No. 17123.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 27, 1978.

      Gerhardt, Kreck & Holliday, Jo Ann Ger-hardt, Houston, for appellant.
    Jo Nelson, Houston, for appellee.
   PEDEN, Justice.

This appeal on behalf of Paul Verret, now deceased, is from an order of dismissal granted after the trial court’s oral rendition of a divorce. Mr. Verret died prior to its written entry, and Mrs. Verret’s motion to dismiss was granted. Appellant’s position is that the trial court erred in dismissing this case because it was not made moot by the death of a party after final decree. Appellee contends the trial judge set aside the oral decree instead of dismissing the cause. We reverse and remand.

An agreed statement of facts reflects that when the hearing on the merits was held on August 16, 1977, both parties appeared in person and by counsel and announced that an agreement had been reached. The trial court pronounced judgment granting the divorce, dividing the community property of the parties, and providing for the support and conservatorship of the minor child. A written decree of divorce was to be submitted to the court. Appellee filed a motion to enter judgment and a hearing was set for October 20, 1977, but this setting was passed by agreement. On November 8, 1977, Paul Verret died.

The statement of facts recites:

“Thereafter, Respondent-Cross-Petitioner filed a Motion to Dismiss and Non-Suit, alleging that the case was now moot because the Petitioner/Cross-Respondent, PAUL VERRET, was dead. The Motion further alleged that the trial court in its discretion could dismiss the action since no written judgment had been signed or entered.
“The Motion to Dismiss and Non-Suit was signed by the trial judge on November 22, 1977, to which dismissal Petitioner/Cross-Respondent gave notice of appeal.”

The dismissal order signed by the court stated:

“BE IT REMEMBERED that on this 22nd day of November. 1977, came on to be heard the Motion of Cross-Petitioner for Dismissal of the above entitled and numbered cause, and the Court being of the opinion that said Motion should be granted, it is, therefore,
“ORDERED, ADJUDGED and DECREED by the Court that said cause be, and the same is hereby dismissed with the costs of Court adjudged against Cross-Petitioner.”

Appellee filed the “Motion to Dismiss and Non-Suit” alleging mootness on November 9.On November 17 she filed a Motion to Set Aside Judgment stating that 1) Mr. Verret was not competent to agree to a settlement of the community estate, 2) Mrs. Verret was left as sole support of the child with no contribution from the father’s estate, 3) Mrs. Verret would be eligible for social security for her daughter, and 4) the nature of the ownership of the home will not change since the daughter would have inherited it anyway. Appellee now argues that the trial judge did not grant her motion to dismiss but granted her motion to set aside the judgment, vacated it and dismissed the suit because he had lost jurisdiction over it.

The only place in the record that indicates the court granted the motion to set aside is on the court’s docket sheet. As noted, both the order itself and the agreed statement of facts state that the court granted her motion to dismiss. Recitals in a judgment or signed order of the court control over conflicting statements in a docket entry. Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S.W.2d 561, 566 (1937); Tejas Trail Property Owners Assoc. v. Holt, 516 S.W.2d 441 (Tex.Civ.App.1974, no writ).

The oral decree of August 16,1977 was a final judgment dispositive of all of the issues. A party is not entitled to dismiss or to take a nonsuit after the rendition of a final judgment. Rule 164, Texas Rules of Civil Procedure. Further, Rule 369a, T.R.C.P., which provides that an appeal may be perfected despite the death of a party, applies to an action for divorce that has not become moot; if, as here, the property rights of the parties would apparently be significantly affected depending upon whether the marriage was terminated by divorce or death, the case is not moot. Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969).

Neither the death of Mr. Verret nor the oral rendition of divorce affected the trial court’s plenary power to set aside the divorce. A trial court retains control over a cause, irrespective of a prior oral decision, until 30 days after the written order is entered; longer, if a motion for new trial is filed. Ex parte Godeke, 163 Tex. 387, 355 S.W.2d 701 (1962); Austin v. Austin, 553 S.W.2d 9, 11 (Tex.Civ.App.1977, writ dism.); Tex.Rules Civ.Proc., Rule 306a. The court has the power to reverse, modify or vacate its judgment at any time prior to its becoming final under Rule 329b, as late as 30 days after an amended motion for new trial has been overruled. Mathes v. Kelton, 21 Tex.Sup.Ct.J. 424, 565 S.W.2d 79 (June 17, 1978).

Appellant argues that the trial court set aside the decree and has now lost jurisdiction of the subject matter, but the decree has not been set aside. A judgment was rendered and it apparently affected the property rights of the parties, so the court did not lose jurisdiction of the cause upon the subsequent death of Paul Verret. Austin v. Austin, 553 S.W.2d 9, 10 (Tex.Civ.App.1977, writ dism.).

The dismissal order of the trial court is reversed and this cause is remanded.


author: EVANS, Justice.

text:
    V. MUELLER & COMPANY et al., Appellants, v. Albert CORLEY et ux., Appellees.
    No. 17127.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 27, 1978.
    Rehearing Denied Aug. 24, 1978.

      Les Cochran, Houston, for appellants.
    Jamail & Kolius, Richard W. Mithoff, Jr., Nat B. King, Houston, for appellees.
   EVANS, Justice.

This personal injury action was brought by Mrs. Norma Corley against Dow Corning Corporation, the manufacturer, and V. Mueller & Company, Inc., the distributor of an allegedly defective silicone breast prosthesis which had been used in a surgical procedure performed on Mrs. Corley. The jury answered all issues of negligence and strict liability in favor of Mrs. Corley and awarded the sum of $170,000.00 as damages. Dow and Mueller bring this appeal.

In September, 1972, Mrs. Corley was referred by her family physician to Dr. E. J. Leeves, a general surgeon, for a condition diagnosed as chronic mastitis. Dr. E. J. Leeves then performed a surgical procedure on Mrs. Corley known as “subcutaneous mastectomy with prosthetic replacement” which involved the excision of the breast tissue underlying the skin flap of her breasts and the replacement of the removed tissue with a prosthesis implant. This procedure was performed without any apparent difficulty, but approximately one month afterward, Dr. Leeves observed that the incision site on Mrs. Corley’s left breast was not healing properly. After extracting fluid from the wound with a hypodermic and noting what he believed to be the presence of a silastic fluid in the wound, he removed the implant and observed a tear in the “shell” or “envelope” of the prosthesis. Dr. Leeves performed a subsequent surgical procedure and implanted a second silicone prosthesis, but ultimately he was required to remove that implant because the incision again failed to heal. It was the opinion of Dr. Leeves that the presence of silastic fluid in the wound caused the failure of the wound to heal properly.

On this appeal the defendants contend that the evidence is legally and factually insufficient to support the jury’s findings that the tear resulted from a defect in the prosthesis or was caused by their negligence; that the trial court erred in refusing certain requested instructions and definitions and also in the admission and exclusion of certain testimony, and that the jury’s award of damages is excessive.

Mr. Arthur H. Rathjen, the senior clinical research specialist for the medical products business at Dow, testified that a silicone prosthesis is a shell or envelope made of silicone polymer which has been cured. The shell is molded on a mandrel, and when it is removed from the mandrel, a small hole, “a little less than the size of a quarter”, remains in the back of the shell. The hole is patched, the envelope inspected, and a silicone liquid is introduced with a needle through a point in the silicone patch. The prosthesis is then subjected to a curing process which brings the contents of the shell to a gelatinous consistency, and from that point it passes through various quality control steps. It is then packaged, sterilized and placed in “quarantine” for 14 days, after which more tests and samples are made. The product is designed so that the contents inside the shell do not come into physical contact with the body of the recipient. Dow instructs physicians using the product that nothing sharp is to come in contact with the implant because if the envelope is damaged in any way the product is not suitable for use.

Mr. Tom W. Broadhagen, a Dow Quality Assurance Medical Products Unit employee, testified that each individual prosthesis is inspected under a magnifying lens to examine the surface of the envelope. Each patch is examined and pulled to make sure it is on properly. The prosthesis is then subjected to compression testing whereby all gel is squeezed into ½ of the shell, this being done with all four quadrants of the implant under a magnifying lens. If there are any leaks, cuts, or weaknesses in the envelope, the device will rupture during compression testing. Every prosthesis can be traced back to the testing process, the subject prosthesis being one of a lot of 450 which were inspected. Of this lot, 383 prostheses were approved and 67 were rejected. On cross-examination Mr. Broadhagen testified that in order for the prosthesis envelope to develop a tear, it would have to come about as a result of some imperfection on the surface (either a tiny hole, an improper thickness in the shell, or an imperfection imbedded in the shell itself) or as a result of someone cutting or nicking it. He conceded that compression testing was “far from being an exact science” and that the system was not “foolproof.” He stated that different amounts of testing pressure would cause the prosthesis to rupture, depending upon the particular defect or weakness involved, but added that such varying pressures would have been well below the threshold of the compression tests conducted at the plant.

Dow represented its silicone prosthesis as being suitable for implantation into the human body and the most reliable restoration procedure to accompany a subcutaneous mastectomy.

Charlotte Seward, the scrub nurse for the surgical procedure on Mrs. Corley, testified that the circulating nurse, Kathy Welch, brought her the package containing the silicone prosthesis. She observed Nurse Welch break the seal on the box, take out the prosthesis and hand it to her. She then passed the prosthesis to Dr. Leeves and observed him place it in the incision in the plaintiff’s body. Nurse Seward testified that she did not see Nurse Welch do anything to damage the prosthesis and that she, herself, did nothing to damage it. Nurse Seward did not see Dr. Leeves cut, tear or nick the prosthesis in any way, and from the time the seal on the box was broken until the time the incision was closed, she observed no leakage from the prosthesis.

Dr. Leeves testified that after he had performed the mastectomy on Mrs. Corley, he inserted the prosthesis through a 2½ inch incision below her left breast and then used a “retractor” to cover the prosthesis so it would not be nicked in the suturing process. He examined the prosthesis carefully before its insertion and found no defects. Approximately a month later he found that Mrs. Corley had a separation of the skin at the incision site, and he used a hypodermic to extract fluid from the wound. He felt the fluid after emptying the hypodermic and was sure that it was silicone although he had no laboratory analysis made. He had never seen free silicone gel before and had no prior experience as to its appearance. When he removed the prosthesis he observed a tear approximately ¼ to ½ centimeter in length.

Dr. Donald R. Sheperd, a board certified clinical and anatomical pathologist, examined the prosthesis after its removal in October, 1972. He found a tear measuring 5 centimeters along one side, but could not say what had caused the tear.

Dr. Frank Gerow, a specialist in plastic surgery, testified on behalf of the defendants. He testified that he and another doctor had been involved in the development of the Dow Corning prosthesis, and since 1963 he had performed “four or 500 hundred or more” surgical procedures involving the implant, of which about 100 were subcutaneous mastectomies. Dr. Gerow testified that he had never seen a spontaneous rupture in a seamless implant such as the one inserted in the plaintiff. Although Dr. Gerow was not permitted to give his opinion as to the cause of the tear in the prosthesis implanted in Mrs. Corley, he was allowed to testify as to possible risks. He testified that an implant could be torn by a surgeon in the wound closing process and that even using a shield or retractor, a potential existed for tearing because “you can catch the edges of the implant along the side of the malleable.” He also testified that silicone gel was too viscous a substance to be manually aspirated through a hypodermic needle of the size used by Dr. Leeves.

The jury was submitted issues under theories of both strict liability and negligence. In response to the strict liability issues, the jury found that “the form or material or performance of the prosthesis in question” rendered it defective as manufactured and that such defect was a producing cause of the occurrence. In response to the negligence issues, which were accompanied by an instruction on res ipsa loquitur, the jury found that the failure of the “form or material or performance” of the prosthesis was due to the negligence of the defendants and that such negligence was a proximate cause of the occurrence.

It was the plaintiffs burden under either theory of recovery to prove the defective condition of the product at the time it left the control of the manufacturer or seller. Jack Roach-Bissonnet, Inc. v. Puskar, 417 S.W.2d 262 (Tex.1967); Bass v. General Motors Corp., 491 S.W.2d 941 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.). It was not essential that the plaintiff identify the specific engineering or structural cause of the defect. Bell Aerospace Corp. v. Anderson, 478 S.W.2d 191 (Tex.Civ.App.—El Paso 1972, writ ref’d n. r. e.). However, the plaintiff was required to trace the defect to the manufacturer. Coca Cola Bottling Co. v. Hobart, 423 S.W.2d 118 (Tex.Civ.App.—Houston [14th Dist.] 1967, writ ref’d n. r. e.).

The evidence shows that the prosthesis reached the hospital in a sealed, sterilized container. There was testimony that the prosthesis was not damaged by the nurses or the physician from the time it was taken from the sealed container until it was placed in a Mrs. Corley’s body, and Dr. Leeves denied that he had cut or nicked the prosthesis during the suturing process. Dr. Leeves testified:

“Q. From the time it was removed from the sealed container by Nurse Welch to the time it was placed in the body of Mrs. Corley, did you see anyone mishandle the prosthesis in any way?
“A. No, Sir.
“Q. Was it nicked, cut or scraped or misused in any way?
“A. No, Sir.
“Q. Were your eyes on it the entire time?
“A. Yes, Sir.
“Q. From the time it was removed from its sealed container until it was placed in her body?
“A. Yes.
******
“Q. Did you at any time nick, touch or scratch the prosthesis with any surgical instrument?
“A. Not to my knowledge.
“Q. At any time?
“A. Not to my knowledge.
“Q. If you had done so, would it have come to your attention?
“A. Yes.”

Dr. Leeves further testified that he carefully examined the prosthesis before inserting it in the body opening and that he turned it over and observed all sides. He saw no tear or holes in the envelope, and it was in good condition as far as he could ascertain. In order to thread the envelope into the opening, it was necessary that he “squeeze it down” because it was larger than the opening. If there were a defect in the envelope, it should have become apparent when the prosthesis was compressed, and he did not observe any imperfection.

The defendants contend that this testimony constitutes direct evidence that the prosthesis was free from defect at the time it was inserted in the body opening, and that the only reasonable inference which could be made from the evidence is that the tear had been caused by a nick or puncture during the surgical process.

The jury was at liberty to make this inference, as contended by the defendants, but it was not bound to do so. There was also testimony which indicated that after a prosthesis had been implanted in a person’s body, it was subject to a certain amount of pressure. If the person should sleep on her stomach or should bump into something, this might create sufficient pressure to bring about a rupture if there were some imperfection in the envelope. The degree of pressure required to rupture the envelope varied according to the nature of the imperfection and the type of pressure applied, and even though Dow’s testing procedures were designed to identify an imperfect prosthesis, its system was not foolproof.

It was for the jury to weigh the evidence and to accept that testimony which it found to be most credible. Although there was no direct evidence tracing the defect to the manufacturer, the fact that the product failed to function properly after being implanted in the plaintiff’s body was a matter which the jury could consider as circumstantial proof of an original defect. General Motors Corp. v. Hopkins, 548 S.W.2d 344, 349-50 (Tex.1977). A product defect may be established by circumstantial evidence. Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex.1969).

The jury could have concluded from the evidence that the prosthesis was designed to maintain its integrity as a flexible, tissue-like “bubble” during the rigorous stresses of human activity. Based upon the testimony that the prosthesis left the manufacturer and passed from the distributor to the physician in a sealed and sterilized container and that it was handled with care and was not damaged during the surgical procedure, the jury could have concluded that the product underwent no change from the time it left the control of the manufacturer until the surgery was completed. Although the jury might have reached a different conclusion in its consideration of the evidence, it could reasonably have concluded from the circumstances before it that the tear in the envelope resulted from an imperfection in the product itself, rather than from the nature of its handling during the surgical process. Thus, the evidence supports the jury’s inference that the product was defective at the time it left the hands of the manufacturer. Pittsburg Coca Cola Bottling Works v. Ponder, 443 S.W.2d 546 (Tex.1969); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). The defendants’ points of error contending that there is no evidence and insufficient evidence to support the jury’s findings are overruled.

The defendants’ points of error directed at the court’s charge must also be overruled. The defendants’ requested instructions with respect to “new and independent cause” and “sole proximate cause” had relevance only to the negligence issues, and any error on the part of the trial court must be considered harmless in light of the jury’s affirmative answers to the strict liability issues. Houston Transit Co. v. Zim merman, 200 S.W.2d 848, 852 (Tex.Civ.App.—Galveston 1947, writ ref'd n. r. e.). Since the jury found that the defect in the prosthesis was a producing cause of the occurrence in question, the plaintiff was entitled to judgment based solely upon that theory of recovery. General Motors Corp. v. Hopkins, supra; Sales & Perdue, The Law of Strict Tort Liability in Texas, 14 Houston L.Rev. 1, p. 59 (1977).

The trial court properly defined the term “defective,” instructing the jury that a product was defective which exposed its user to an unreasonable risk of harm, making the product dangerous “to an extent beyond that which would be contemplated by the ordinary user.” The defendants sought an instruction to the effect that the term defective meant a product which would be unreasonably dangerous to the user and that the term “unreasonably dangerous” meant the product was dangerous “to the extent beyond that which would be contemplated by the ordinary physician.” The defendants argue that a prosthesis is a specialized medical product, requiring the exercise of a physician’s skill and judgment in the determination of its use, and that the physician, rather than the user, would be required to determine whether the product exposed the user to an unreasonable risk of harm.

The defective condition in the prosthesis in question rendered it unreasonably dangerous to Mrs. Corley, not to her physician, Dr. Leeves. The appropriate question for the jury, therefore, was whether the defective condition was one which was not contemplated by the user, the “ultimate consumer.” Restatement (2d) of Torts § 402 A (1965). The trial court properly keyed its instructions to the mind of the person who would be injured by the dangerous condition of the product. Helicoid Gage Division of American Chain & Cable Co. v. Howell, 511 S.W.2d 573, 578 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.).

Over the defendants’ objection, the trial court permitted the plaintiff’s witness, Dr. Donald Sheperd, to testify with respect to the injurious nature of the silicone gel which formed the center of the prosthesis. Dr. Sheperd testified that the material could cause a reaction of the surrounding tissues and that it would inflame and irritate the tissues if it was allowed to come out of the envelope. Dr. Sheperd admitted that he did not know what material was in the envelope, only that it was “some kind of compound that is very flexible and gooey.” The defendants contend that Dr. Sheperd was not qualified to give an expert opinion regarding the effect of the prosthesis material on surrounding tissues and that the trial court’s error in admitting his testimony, coupled with its error in excluding certain testimony of their expert witness, Dr. Gerow, was calculated to and probably did result in the rendition of an improper judgment.

Dr. Gerow testified that during his research, first with animals and later with human beings, involving the use of “free” silastic gel, he had not observed any different reaction in the surrounding tissues than he had observed with the implant intact. In his experience, he had observed “a condition of redness” and “a slow healing wound, a condition of inflammation,” which, he stated, were caused either by a developing infection or by some diminished blood supply to the wound.

The trial court sustained the plaintiff’s objection to a hypothetical question posed to Dr. Gerow, seeking his opinion as to “the possible cause” of the tear in the prosthesis in question. On bill of exception Dr. Gerow responded to this question by stating that all of the tears he had seen were the result of a “direct suture puncture” of the prosthesis during the surgical procedure.

The trial court indicated to counsel that Dr. Gerow would be permitted to testify as to the risks involved in the procedure, but would not be allowed to give his opinion as to the cause of the tear in question. Dr. Gerow then proceeded to testify before the jury that during his surgical career he had observed tears in silicone prostheses caused by the surgical process and that such tears usually occurred or had “the potential” to occur during the suturing process. The suture “can go through the wound edge and can very easily catch the implant and put a tear in it.” The use of a malleable retractor “may or may not help” during the suturing process because even using such a shield, the physician can still catch the edges of the implant along the side of the malleable. Furthermore, after the retractor is removed toward the end of the closing process, the prosthesis is vulnerable without the protection of the shield. In the course of his experience, Dr. Gerow had never seen a spontaneous rupture with a seamless prosthesis implant.

The testimony of Dr. Gerow, which was permitted to go before the jury, clearly reflects his view that a rupture in a seamless prosthesis implant would likely have been the result of a nick or puncture occurring during the surgical process. Dr. Ger-ow’s testimony before the jury is similar to and has the same import as his testimony which was excluded, and the record does not reflect that the trial court abused its discretion in excluding the testimony offered. Green v. Houston Belt & Terminal Ry. Co., 558 S.W.2d 127, 128 (Tex.Civ.App.—Houston [14th Dist.] 1977, no writ). Considering the record in its entirety this court cannot determine that the cumulative effect of the trial court’s rulings constitutes reversible error. Rule 434, Texas Rules of Civil Procedure; Galveston H & S. A. Ry. Co. v. Smith, 100 Tex. 267, 98 S.W. 240 (1906).

The defendants also contend that the jury’s award of $170,000.00 is so excessive that it shows the jury was improperly motivated by passion and prejudice, and a remittitur of $120,000.00 is requested.

The evidence shows that Mrs. Corley was required to undergo four surgical procedures, two of which were caused by the failure of the tissue to heal under the prosthesis implant in her left breast. After the incision failed to heal after the second procedure, Dr. Leeves concluded that he would not insert a third prosthesis because of adverse psychological consequences to Mrs. Corley. He prescribed anti-depressant drugs while Mrs. Corley was having problems with the prosthesis immediately after the surgery. Mrs. Corley testified that approximately a week and a half after the initial surgery her left breast became inflamed and was painful, and since she was allergic to most painkilling drugs she had to take a synthetic drug which did not do very much good. She experienced more pain after the second prosthesis was inserted and had to return to Dr. Leeves to have the skin resutured because the sutures ruptured and were bleeding. She then underwent “another type of resuture, sort of like extra skin grafting” and finally the second prosthesis had to be removed. Mrs. Corley now has no part of her breast remaining on the left side and she is taking anti-depressant medication. She testified that she is embarrassed by her condition and feels like people are always looking at her. Mr. Cor-ley testified that prior to the surgery his wife was outgoing and “very pleasant to be around” but since that time, she has withdrawn and “stays at home and doesn’t care about going anywhere or about being with people.”

In determining whether a verdict is excessive the courts must review only that evidence which is favorable to the award, and the jury’s findings will not ordinarily be disturbed if there is evidence to sustain the award. Hammon v. Stricklen, 498 S.W.2d 356, 363 (Tex.Civ.App.—Tyler 1973, writ ref’d n. r. e.). A verdict based largely on pain and suffering is an area in which the jury’s findings must be given special weight. Monsanto Co. v. Milam, 480 S.W.2d 259, 268 (Tex.Civ.App.—Houston [14th Dist.], aff’d 494 S.W.2d 534 (Tex.1973). Considering the record in its entirety, the jury’s award is not so excessive as to shock the court’s sense of justice nor does it indicate the jury’s verdict was improperly motivated by passion, prejudice or other improper motive. Thus, the verdict will not be disturbed. World Oil v. Hicks, 129 Tex. 297, 103 S.W.2d 962 (1937).

The trial court’s judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    Victor A. PEKAR, Appellant, v. ST. LUKE’S EPISCOPAL HOSPITAL et al., Appellees.
    No. 5855.
    Court of Civil Appeals of Texas, Waco.
    July 27, 1978.
    Rehearing Denied Sept. 7, 1978.
    John H. Holloway, Rex C. Mounger, Mounger & Whittington, Houston, for appellant.
    Charles D. Boston and Timothy R. Bersch, Fulbright & Jaworski, Sam W. Cruse, Jr., Andrews, Kurth, Campbell & Jones, Houston, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Pekar from taking nothing judgment rendered on an instructed verdict for defendants St. Luke’s Hospital, Dr. Cameron and Dr. Henry in a medical malpractice case.

Plaintiff sued the hospital and the two doctors alleging that Dr. Cameron and Dr. Henry operated on his back in St. Luke’s Hospital on August 10, 1971; that when he submitted to the control of the 3 defendants on August 10, 1971 he did not have a “winged scapula condition of the right shoulder blade”; that upon regaining consciousness following surgery his right shoulder blade protruded and such condition has been medically diagnosed as a “winged scapula condition”; that he has no knowledge or way of knowing what happened to his body while he was unconscious; that a winged scapula condition does not ordinarily result from an operation of the type plaintiff had; but is an injury which does not ordinarily occur unless there is negligence on the part of someone; that all personnel and equipment at the hospital were under the exclusive control of one or more of the defendants while plaintiff was sedated; that since plaintiff emerged from the operation with the winged scapula condition, it is incumbent on defendants to come forward with evidence to demonstrate absence of negligence in causing plaintiff’s injury. Plaintiff alleged Drs. Cameron and Henry performed a properly done operation on him; but that one or more of the defendants or their employees, negligently did or failed to do some act which resulted in plaintiff’s sustaining a winged scapula injury; that such condition is a serious permanent injury; deprives plaintiff of substantial use of his right shoulder; impairs his work at job, home and recreation; to his damage of $501,000.

The hospital answered by general denial and plead plaintiff’s condition was caused by physical conditions and developments unrelated to his hospital care. The two Doctors answered by general denial.

Trial was to a jury. At the close of plaintiff’s evidence all defendants moved for instructed verdict, asserting: 1) There is no evidence the winged scapula (or other asserted conditions) of plaintiff were caused by any negligent act of any defendant or their employee; 2) the doctrine of res ipsa loquitur is not applicable to this case.

The trial court granted such motions; instructed the jury to return a verdict for all defendants; and rendered judgment plaintiff recover nothing from the three defendants.

Plaintiff appeals contending:

1) The trial court erred in sustaining the Hospital’s motion for instructed verdict since a fact issue of negligence and proximate cause was raised under the evidence and plaintiff’s pleading of “res ipsa loquitur”.
2) The trial court erred in sustaining Drs. Cameron and Henry’s motion for instructed verdict since a fact issue of negligence and proximate cause was raised under the evidence and plaintiff’s pleading of “res ipsa loquitur”.
3) The trial court erred in sustaining the Hospital’s motion on instructed verdict because the evidence raised a fact issue as to whether the injury to plaintiff’s right shoulder, cheek area and right ankle, was due to the negligence of the hospital’s employees in the handling of plaintiff while he was under anesthetic.
4) The trial court erred in sustaining Drs. Cameron and Henry’s motion for instructed verdict because there was evidence raising a fact issue as to whether the injury to plaintiff’s right shoulder, cheek area and right ankle was due to the negligence of the doctors or their employees in the handling of plaintiff while he was under anesthetic.

Plaintiff testified Dr. Cameron operated on his back at the L-5 level with fusion in 1965; that he reinjured his back in 1971 (at which time he was 35 years old); that Dr. Cameron and Dr. Henry operated on a disc at the L-4 level on August 10, 1971; that prior to receiving anesthetic he had no pain in his right shoulder; did not have a “winged scapula”; had no pain in his feet or injury to his face; that on becoming conscious his right foot was completely dead; his right shoulder was burning; and he had pain in his right cheek below his right eye; that when back home he looked in the mirror and saw that his right shoulder blade stuck out. He told the nurses while in the hospital of his right cheek, right shoulder and right ankle problems. Thereafter he told Dr. Cameron of the shoulder and right foot injury, and told Dr. Henry about the bruises under his right eye, and his leg and shoulder injury. In 1974 he had surgery on his right ankle; and on his right cheek to remove a blood vessel which had broken and clotted. He fractured his right ankle when he was 17 years old, and in 1973 his lower foot was injured in a volleyball game, which required treatment at the hospital; and he was in an automobile accident in 1967 which required medical treatment for a neck injury and muscle spasms, and for which he filed a suit for $50,000. He did not remember receiving any injury, and assuming he did receive an injury he doesn’t know whether it occurred in the operating room, the recovery room or in his hospital room.

Plaintiff’s wife testified that prior to surgery in August 1971 plaintiff had no complaints involving injury to his right ankle, cheek or other part of his body; that when he became conscious he complained of his back, right cheek and right shoulder; that the day plaintiff came home from the hospital she learned of the winged scapula condition of his right shoulder.

Dr. Cameron testified he examined plaintiff prior to admission to the hospital in August 1971, and again after admission; that there was no evidence of any injury or disability to plaintiff’s right foot, altho plaintiff advised him the ankle had been previously fractured; that he did not have a winged scapula or evidence of injury to his right shoulder; that he did not notice any injury to his right cheek; that plaintiff was given anesthetic; the surgery performed (removal of disc and spinal fusion); that plaintiff was removed to the recovery room and then to his hospital room by the anesthetist and hospital personnel; that he first learned of plaintiff’s shoulder condition September 3, 1971; that the winged scapula was probably caused by a viral infection, but could be caused by a blow to the back or pressure on the long thoracic nerve; that he checked plaintiff’s hospital record and noted there were 24 documented observations, but no notations of bruises or winged scapula; that plaintiff’s 1974 right ankle surgery was for “tung torsal syndrome which is a tightening of a ligament on a nerve; that an ankle fracture can lead to this problem over a period of years; that nothing in the 1971 surgery could cause this, that the most probable cause of the ankle condition was the old fracture of the ankle.

Dr. Oates, a physical medicine specialist, testified he first saw plaintiff in July 1974; that plaintiff had a “winged scapula,” and damage to his right ankle; that he had “no definite idea whatsoever what might have caused the two sets of nerve damage”; that plaintiff being in surgical position 3½ hours may “well have damaged” the right ankle; and with plaintiff face down on his right cheek could cause the face a bruise; that the movement of plaintiff while sedated by the nurses pulling on the arm could damage the long thoracic nerve.

Dr. Henry testified he checked plaintiff before the surgery; remembered no bruises on plaintiff’s right cheek; that the tests were slightly abnormal on the right leg; that the anesthetist and operating room assistants moved the patient from the hospital bed to the operating table; that the surgery would not injure plaintiff’s right foot; that abnormal positioning of the foot during the surgery could cause injury to the nerve; that the hospital record of August 19, 1971 notes “a slight numbness in the right heel”; that plaintiff was heavily sedated for three days after the surgery; that a violent jerk in turning such a patient could injure the long thoracic nerve; the nurses and personnel who move patients from the operating room to the recovery room and into the hospital room are under the hospital.

Succinctly stated, the evidence reflects that plaintiff had no injury to his right shoulder, right ankle and right cheek prior to his surgery; that following his surgery he had such problems. There is no evidence that any defendant or employees of any defendant, did any act or failed to do any act, proximately causing plaintiff’s injuries. Dr. Cameron testified that plaintiff’s winged scapula shoulder condition was probably caused by a viral infection; but could be caused by a blow or pressure to the long thoracic nerve; that the right ankle injury was most probably caused by the old fracture of the ankle. There is evidence the ankle injury could be caused by abnormal positioning of plaintiff during the surgery; and that the shoulder condition could be caused by jerking or pulling on the arm; and that the right cheek condition could be caused by plaintiff’s positioning during surgery.

Plaintiff speculates in his brief that he may have been dropped or mishandled during the surgery or during the removals to the recovery room or his hospital room or that he may have been mispositioned on the operating room table, but offers no evidence that any of the above occurred.

In determining the correctness of an instructed verdict we must consider only the evidence favorable to plaintiff, together with all reasonable inferences therefrom. Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60; Anderson v. Moore, Tex., 448 S.W.2d 105.

Nevertheless, an inference cannot rest on an inferred fact; a presumption cannot rest on a fact presumed; and facts upon which an inference may rest must be established by direct evidence. Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791; McClish v. R. C. Young Feed & Seed Co. (Amarillo, Tex.Civ.App.) Er. Ref., 225 S.W.2d 910.

But plaintiff contends that under the evidence and “res ipsa loquitur” issues of negligence and proximate cause were raised.

The doctrine of res ipsa loquitur is generally held by Texas courts to be inapplicable to medical malpractice cases. Harle v. Krchnak (1 Houston, Tex.Civ.App.) NWH, 422 S.W.2d 810; Shockley v. Payne (Amarillo, Tex.Civ.App.) NRE, 348 S.W.2d 775; Bell v. Umstattd (Austin, Tex.Civ.App.) NRE, 401 S.W.2d 306.

An exception to this rule is recognized where the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, as where the negligence alleged is in the use of mechanical instruments, operating on the wrong portion of the body, or leaving surgical instruments or sponges within the body. In such cases the requirement of medical testimony is eliminated, but the necessity of proof of negligence remains. Louis v. Parchman (Fort Worth, Tex.Civ.App.) NRE, 493 S.W.2d 310; Stinnett v. Price (Amarillo, Tex.Civ.App.) NRE, 446 S.W.2d 893; Rayner v. John Buist Chester Hospital (Waco, Tex.Civ.App.) NRE, 526 S.W.2d 637. See also: Irick v. Andrew (14 Houston, Tex.Civ.App.) NRE, 545 S.W.2d 557; Forney v. Memorial Hospital (Beaumont, Tex. Civ.App.) NRE, 543 S.W.2d 705.

In this case no act or failure to act has been proved as to any defendant or their employees. The evidence shows that plaintiff’s injuries could have occurred from causes other than defendant’s acts or omissions, and such have not been negated. And the evidence does not show that plaintiff’s injuries were probably caused by some act or failure to act on the part of defendants, and does not show that plaintiff’s injuries or conditions could only have occurred by the negligence of defendants or their employees. Southwest Texas Methodist Hospital v. Mills (Tyler, Tex.Civ.App.) NRE, 535 S.W.2d 27; Smith v. Caplan, (Amarillo, Tex.Civ.App.) NRE, 425 S.W.2d 477; Trio Transport, Inc. v. Henderson (Amarillo, Tex.Civ.App.) NRE, 413 S.W.2d 806; Longoria v. Violet Gin Company (San Antonio, Tex.Civ.App.) 309 S.W.2d 484; Graham v. Fed-X, Inc. (Fort Worth, Tex. Civ.App.) NRE, 384 S.W.2d 785; Davis v. Castile, Tex.Com.Appls., 257 S.W. 870; Benkendorfer v. Garrett (San Antonio, Tex. Civ.App.) Er. Dismd., 143 S.W.2d 1020; Texas & P. Coal Co. v. Kowsikowsiki, 103 Tex. 173, 125 S.W. 3.

Further, mere proof of an injury, in the absence of proof of the manner in which it was received and the circumstances attending the occurrence thereof, is insufficient to warrant an inference of negligence on the part of a defendant, and to invoke the res ipsa loquitur doctrine. Patrol Valve Company v. Farrell (Amarillo, Tex.Civ.App.) NRE, 316 S.W.2d 92; Socony Mobil Company, Inc. v. Southwestern Bell Telephone Co. (Corpus Christi, Tex.Civ.App.) NWH, 518 S.W.2d 257.

The doctrine of res ipsa loquitur does not apply in this case.

All plaintiff’s points and contentions are overruled.

AFFIRMED.


author: DODSON, Justice.

text:
    In the Matter of the MARRIAGE OF Joe Neal STOCKETT and Doris Ann Stockett.
    No. 8913.
    Court of Civil Appeals of Texas, Amarillo.
    July 31, 1978.

      Morehead, Sharp, Tisdel, White & Self, Edward L. Self, Plainview, for appellant.
    Day, Owen, Lyle & Voss, Lanny R. Voss and Rudd F. Owen, Plainview, for appellee.
   DODSON, Justice.

Joe Neal Stockett appeals from an order granting Doris Ann Stockett a divorce and appointing her managing conservator of their child. He contends the trial court abused its discretion in appointing Mrs. Stockett managing conservator and in failing to interview the child in chambers during custody hearings. He also asserts that the trial court erred in granting the divorce. Affirmed.

In his point of error attacking the divorce decree Mr. Stockett maintains that it was based on insufficient evidence. Section 3.01 of the Texas Family Code permits divorce without regard to fault, “if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.”

Mr. Stockett contends the marriage was not shown to be insupportable and that a reasonable expectation of reconciliation exists. In support of his claim, he says there is a detectable hesitancy on the part of Mrs. Stockett about obtaining the divorce, which is reflected in her statement prior to the hearing that she would “think about” reconciliation. However, Mrs. Stockett proceeded with the hearing and responded “No, sir” when asked, “Is there any hope in your mind that you will be able to reconcile the differences that you and Joe have and reconcile your marriage?” In fact, Mr. Stockett acknowledged in his testimony at the second hearing that “I think every time I approached her for a reconciliation she said, ‘No way.’ ”

The sufficiency of evidence necessary to satisfy the requirements of section 3.01 is left to the discretion of the trial court and every presumption is indulged in favor of the judgment. Baxla v. Baxla, 522 S.W.2d 736, 739 (Tex.Civ.App.—Dallas 1975, no writ). We have reviewed and considered all of the evidence in the record and find such evidence sufficient to support a conclusion by the trial court that the marriage had become insupportable and lacked any reasonable hope of reconciliation. See Baxla, supra, at 738-39. Appellant’s third point of error is overruled.

Mr. Stockett also asserts that the trial court abused its discretion in declining to interview the couple’s five and one-half year old child during the custody hearing. The trial judge may confer in chambers with a child under the age of twelve to ascertain the child’s desires concerning appointment of a conservator. Tex.Family Code Ann. § 14.07(c)(Supp.1978). Under the Family Code, an interview with a child under the age of twelve is not mandatory and the results of the interview, if had, “shall not alter or diminish the discretionary power of the court.” In the case before us, any stated preference by the child, if she was of sufficient maturity to make such a judgment, would not be binding on the court and would amount to no more than other evidence to be weighed by the court in determining the ultimate custody issue.

In declining the father’s requested interview of the child, the trial judge explained that he did not want a child of the tender age of five and one-half thinking, consciously or subconsciously, that she con-. tributed to the decision of which parent was appointed her managing conservator. Under the circumstances, we conclude that the trial court did not abuse its discretion in declining to interview the child. Appellant’s second point of error is overruled.

In addition, Mr. Stockett contends that the trial court’s decision to appoint the child’s mother as managing conservator was so against the great weight of the evidence as to be an abuse of discretion. In determining the custody of minor children, the primary consideration of the courts of this state is the welfare and best interests of the children involved. Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex.1963); Johnson v. Johnson, 536 S.W.2d 620, 621 (Tex.Civ.App.—Tyler 1976, no writ); Tex.Family Code Ann. §,, 14.07(a) (Supp.1978). The determination of this question is addressed to the sound discretion of the trial court when it is the trier of fact, and the appellate court will not disturb the decision of the trial court unless there has been a clear abuse of such discretion. Mumma v. Aguirre, supra: Herrera v. Herrera, 409 S.W.2d 395, 396 (Tex.1966); Wilkinson v. Evans, 515 S.W.2d 734 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.).

On July 7, 1977, the trial court first heard this matter. There was sufficient evidence for the court to conclude that Mrs. Stockett is a conscientious parent; that the relationship between her and the child is very good; that the child is stable and well adjusted; that the results of psychological tests conducted on Mrs. Stockett, at her request, indicated no inability on her part to take care of the child; and that the child is well taken care of.

Following the hearing on July 7,1977, the court announced that Mrs. Stockett was appointed managing conservator. Before the court entered judgment on the matter, Mr. Stockett moved to modify the managing conservatorship claiming a material and substantial change of circumstances since the hearing. He alleged that the mother was engaging in an adulterous relationship with a male companion which jeopardizes the child’s emotional health.

On October 28,1977, the trial court heard the motion to modify the conservatorship. The evidence showed, among other things, that the mother was permitting her male companion to live in the house with herself and the child. The mother testified that she and her male companion plan to be legally married as soon as possible; however, in the meantime they had exchanged wedding vows with each other privately. Also, the male companion’s brother, his wife and their six year old child were temporarily residing in Mrs. Stockett’s house until they were financially able to obtain their own place.

A psychologist expressed his opinion that the mother’s involvement in a serious relationship with a male companion, whether they be married or not, so soon after the divorce, created a higher risk for possible emotional instability in the child. However, the evidence failed to show any immediate change in the child’s conduct or her physical or emotional stability.

In fact, the trial court found, in overruling Mr. Stoekett’s motion to modify the custody, “that circumstances have not materially and substantially changed so as to endanger the physical health or significantly impair the emotional development of the child.”

The modification of an order or decree appointing a managing conservator may be granted only on a showing that the circumstances have materially and substantially changed. These changes must be such that the retention of the present managing conservator would be injurious to the child’s welfare, and the appointment of a new managing conservator would be a positive improvement for the child. Tex.Family Code Ann. § 14.08(c)(1) (Supp.1978). However, modification is not required under such circumstances unless a denial of the change would constitute an abuse of the trial court’s discretion. Mumma v. Aquirre, supra; Herrera v. Herrera, supra; Wilkinson v. Evans, supra.

We have reviewed all of the evidence in the record and conclude that the trial court did not err in appointing Mrs. Stockett managing conservator of the child or in overruling Mr. Stockett’s motion to modify the managing conservatorship.

Appellant’s first point of error is overruled.

Accordingly, the judgment of the trial court in all things is affirmed.


author: RAY, Justice.

text:
    Virgie Jean Blackwell THARP, Appellant, v. Carla Jean BLACKWELL, Appellee.
    No. 8511.
    Court of Civil Appeals of Texas, Texarkana.
    July 31, 1978.
    Rehearing Denied Aug. 22, 1978.

      Ben Z. Grant, Marshall, for appellant.
    John J. King, William F. Henri, Dyche, Wright, Sullivan, Bailey & King, Houston, for appellee.
   RAY, Justice.

The original opinion of this Court delivered on May 30,1978, is withdrawn and the following opinion is substituted.

This is a probate proceeding. Appellant, Virgie Jean Blackwell Tharp, guardian of the person and estate of her minor child, Carla Jean Blackwell, filed both the guardian’s amended annual account and amended account for final settlement which were objected to by the ward, Carla Jean Blackwell, appellee. Appellee had reached her majority in 1973 and had requested that the guardianship be closed and that the assets be distributed to her. A hearing was held in October 1976 in the County Court of Rusk County concerning the objections and exceptions filed by the ward. After the hearing, the county court entered its order restating the account for final settlement and found that the ward was entitled to receive from the guardian the sum of $252,-802.00 and ordered such amount delivered forthwith to the ward. In addition, the court entered a judgment against the guardian in favor of the ward in the sum of $252,802.00 together with interest at the rate of 9% per annum plus attorney’s fees in the amount of $2,500.00 and ordered that' the ward be “. . . allowed all such writs and processes that may be necessary, including writs of execution and/or garnishment and all other writs and processes to enforce this Judgment as are in such cases made and provided for by law.”

The judgment of the trial court will be affirmed in part and reversed and remanded in part.

Appellant has grouped points of error 1 through 7 in which she contends that the judgment of the trial court is void because the court exceeded its jurisdictional authority by entering a judgment against appellant for more than $1,000.00. In this regard, we have sustained appellant’s point of error No. 22 which makes it unnecessary for us to consider appellant’s first seven points.

Point of error No. 22 is as follows:

“THE COURT ERRED IN ENTERING A JUDGMENT EXCEEDING THE RELIEF SOUGHT BY THE PLAINTIFF AND PRAYER OF THE WARD.”

The prayer filed by the ward in her objections to the annual and final accounts was as follows:

“WHEREFORE, the Ward prays that the Court in all things disapprove said Final Account and that she recover all costs in this behalf expended.”

No money judgment was sought against appellant either in her capacity as guardian or in her individual capacity. No trial amendment was sought or granted and it does not appear that the issue was tried by consent. The trial court thus erred in rendering a personal judgment against appellant when the proceeding was only one to determine the correctness of the annual account and the account for final settlement under Section 408, Tex.Prob.Code Ann. (1956) Tex.R.Civ.P. 301; 4 R. McDonald’s, Texas Civil Practice, Sec. 17.27, at 184 (1971); 33 Tex.Jur.2d, Judgments, Sec. 65, p. 564. It is well settled that the court may not grant relief not supported by pleadings or prayer. Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130 (1942); Board of Firemen’s Relief & Retire. Fund v. Stevens, 372 S.W.2d 572 (Tex.Civ.App.—Houston 1963, no writ). Neither the pleadings nor the prayer contained in the objections to the annual account and final account support the personal judgment against appellant. Appellant’s point of error No. 22 is sustained. It should be noted, however, that since this was a proceeding under Sec. 408 of the Texas Probate Code, the court was under a duty imposed by law to examine the account for final settlement and restate it if that be necessary, regardless of the relief prayed for by the ward. The court also exceeded the relief prayed for when it added 10% compound interest onto the amount due from the guardian to the ward. The court is only authorized to assess damages at the rate of 10% compounded after compliance has been had with Section 414 of the Texas Probate Code.

Appellant groups points of error 8 through 19 and complains of the trial court’s action in awarding attorney’s fees in the amount of $2,500.00. We have concluded after reviewing Rule 170, Tex.R.Civ.P., that it does not authorize nor was it intended to authorize the payment of attorney’s fees for failure to comply with an order made under Rule 167. Attorney’s fees are available for failure to comply with Rule 169 and Rule 215a, Tex.R.Civ.P. Appellant’s points of error 9 and 10 are sustained.

Appellant’s points of error 8 and 11 through 19 concerning the attorney’s fees are not reached.

Next, appellant complains of the admitting into evidence copies of documents which did not comply with the best evidence rule and without a proper predicate being laid for the introduction of such instruments. The thrust of appellant’s argument is that the records admitted into evidence were only copies. Article 3731b, Tex. Rev.Civ.Stat.Ann. (Supp.1978), provides that public and business records which have been reproduced by any photocopy method which accurately portrays the original shall be admissible if it is otherwise admissible under Article 3731a or 3737e and that the existence or non-existence of the original shall not affect the admissibility of the reproduction. Preliminary to trial, the county court could have ordered such evidence established under Rule 170 if the court had so desired. Sanctions under Rule 170, Tex. R.Civ.P., are not available for enforcement of a trial judge’s orders made in the course of actual trial, however. American Central Ins. Co. v. Texhoma Stores, Inc., 401 S.W.2d 593 (Tex.1966). Appellant’s points of error 20 and 21 are overruled.

We have examined appellant’s points of error 23 and 24 and find that the trial court was in error in finding that the guardian had not filed a motion for continuance but that such constitutes harmless error. A handwritten motion was filed on behalf of the guardian by her counsel as reflected by the record. The court did not err in conducting the hearing on the annual and final accounting in the absence of the guardian. The record reflects that the court had been extremely lenient in previously continuing the case on grounds that the guardian was ill. We find no abuse of discretion on the part of the trial court in proceeding without the guardian under the facts developed in this case. Appellant’s point of error 24 is overruled. Point of error 23 is sustained.

Appellant’s point of error 25 concerning the guardian’s failure to answer requests for admissions is overruled. The county court was authorized to deem all requests for admissions as admitted pursuant to Tex.R.Civ.P. 169 when the answers had not been timely filed by appellant and when the responses were not signed and sworn to by the guardian.

Appellant’s points of error 26 and 27 state that the trial court erred in not giving credit for expenditures made by the guardian under the authority of court orders during the guardianship and in not construing the orders to expend funds to be an authorization for expenditures from the corpus of the guardianship estate. These points will be overruled. The evidence in this case indicates, and the court so found, that the mother/guardian was financially able to support her child/ward from her own resources during the pendency of the guardianship. There is no evidence in the record to indicate otherwise. The law of this state imposes upon a parent, who has resources of his own sufficient to maintain his children, and who is also guardian of their estates, to support them out of his own means and he may not have recourse to the estates of the wards. Moore v. Moore, 31 S.W. 532 (Tex.Civ.App.1895); Motion for Rehearing Overruled, 32 S.W. 161 (Tex.Civ.App.1895). See 27 Tex.Jur.2d, Guardian and Ward, Sec. 124, pp. 445-446. Appellant’s points of error 26 and 27 are overruled except as to their application to social security funds which will be covered later in this opinion.

Appellant’s points of error 28 through 31 complain of the trial court’s awarding interest against the guardian for unauthorized expenditures and assessing interest against the guardian on sums of money used for the benefit of the guardian at a rate of 10% compounded interest.

We have concluded that in the present proceeding in which the annual and final accounts were under review and no other relief sought that the probate code does not give the County Court of Rusk County authority to assess interest against the guardian for the guardian’s acts of waste, conversion, mismanagement or negligence. A county court may determine the amount of unauthorized expenditures in restating the final account, subject to appellate review. If the guardian appeals, and the appellate review affirms the actions of the probate court, then the ward may proceed under Section 414, Texas Probate Code, if the guardian fails to deliver the estate to the ward. In addition, the ward after having reached majority, may proceed in a court of competent jurisdiction to recover from the guardian and/or his sureties any loss occasioned by negligence, mismanagement, waste or conversion committed by the guardian. If it is determined that the guardian has used the assets of the ward without proper authority or has misappropriated the assets of the ward, then such court may charge interest against the guardian at the highest rate allowed by law from the date or dates of the appropriation of the funds by the guardian. The highest legal rate shall be calculated on the basis of simple interest rather than compound interest. Anderson v. Armstrong, 132 Tex. 122, 120 S.W.2d 444 (1938). See also Section 396, Texas Probate Code, and 27 Tex.Jur.2d, Guardian and Ward, Sec. 322, pp. 594-595. Appellant’s points of error 28 through 31 are sustained.

Appellant’s points of error 32 through 34 state that the court erred in not allowing the amount of expenditures from the estate for the necessary support and maintenance of the ward. These points are overruled. Moore v. Moore, supra.

Appellant’s point of error 35 is sustained. The trial court had no authority to enter judgment against the appellant as has been previously stated in this opinion, since no such relief was requested by appellee.

Point of error 36 is as follows:

“THE COURT ERRED IN FAILING TO FOLLOW THE PROPER PROCEDURE UNDER SECTION 401(e) OF THE TEXAS PROBATE CODE BY ALLOWING THE GUARDIAN TO CORRECT ANY ERRORS FOUND BY SAID PROBATE COURT.”

Our review of the record in this case indicates that appellant had ample opportunity to present evidence concerning the annual account and the final accounting and failed to do so. Appellant’s point of error 36 is overruled.

Point of error 37 is as follows:

“THE COURT ERRED IN FAILING TO TAKE INTO ACCOUNT ADMISSIONS MADE BY THE WARD THAT SHE RECEIVED NUMEROUS BENEFITS FROM THE GUARDIAN, AND CREDIT SHOULD HAVE BEEN MADE FOR SUCH BENEFITS EVEN IF VOUCHERS WERE UNAVAILABLE TO SUPPORT THE SAME.”

The guardian is entitled to credit for all benefits received by the ward unless such benefits were bestowed upon the ward by the guardian as gifts. The authority of the guardian to act for the ward comes to an end when the ward reaches majority, whether the court entered an order to that effect or not. Longoria v. Alamia, 149 Tex. 234, 230 S.W.2d 1022 (1950). Admissions made by the ward concerning the benefits received should be allowed. It appears that benefits in the sum of $34,864.00 have been admitted and the guardian should be given full credit for such expenditures.

In appellant’s points of error 38 through 41 it is contended that the trial court erred in finding that evidence had not been presented to previous county judges concerning the financial condition of the guardian. Those points are overruled because the evidence supports the trial court’s findings of fact 16 through 18 which conclude that the guardian did not present any evidence of her financial condition or her financial ability to support the ward from 1961 through 1971.

Appellant’s point of error 42 concerning the sales price of the grand piano belonging to the estate is overruled. Request for admission number 9 requested the guardian to admit that the piano was sold to Glendon E. Johnson for $3,350.00. When the guardian refused to answer the request, the court ordered all requests for admissions deemed admitted on October 4, 1976.

Appellant’s points of error 43 and 44 complain that the trial court did not give the guardian credit for expenditures made to the ward after the ward reached her majority. Appellee states that credit has been given. We are of the opinion that the guardian is entitled to such credit and same should be reviewed for accuracy upon remand of the case,

Appellant’s points of error 45 through 47 complain of fact finding number 83 which stated that the guardian sold a 1971 Gremlin automobile owned by the estate for the sum of $1,500.00 and that the proceeds of the sale were unaccounted for in the 1974 annual account. We find such points to be without merit. The court properly treated the matter in its finding of fact number 76.

In point of error 48 appellant states that the trial court erred in reaching conclusion of law number 10 and the findings of fact related thereto because appellant contends that social security survivor benefits are not a part of the corpus of the ward’s estate.

We agree. Social security survivor benefits are for the support and maintenance of minors, adult college students and others within the limits set by federal law. It is a matter of common knowledge that social security benefits are paid to individual payees for minors, adult college students, and totally disabled adult children who were dependent upon the deceased or totally disabled parent and that such payments are not ordinarily paid to guardians. We are of the opinion that the Social Security Act, 42 U.S.C.A. 405 (1974), preempts the field concerning social security benefits that are paid to an individual payee. Federal regulations provide the following:

“Payments certified to a relative or other person on behalf of the beneficiary shall be considered as having been applied for the use and benefit of the beneficiary when they are used for the beneficiary’s current maintenance — i. e., to replace current income lost because of the disability, retirement, or death of the insured individual.” 20 C.F.R., Subpart Q, Sec. 404.1604.

Unless the social security benefits are paid directly to the guardianship, they form no part of the corpus of the ward’s estate. However, if the social security funds are commingled with guardianship estate funds, then the social security funds must be accounted for by the guardian to the satisfaction of the county court. The same applies if the social security benefits are paid directly to the guardianship. On remand, the trial court will need to determine whether the funds were paid directly to a payee as an individual for the benefit of the minor child or whether the funds were paid to the guardianship or paid to appellant and commingled with funds in the guardianship account.

Point of error 49 is as follows:

“THE COURT ERRED IN NOT MAKING STATUTORY ALLOWANCES TO THE GUARDIAN.”

Section 236 of the Texas Probate Code provides that “The court may direct the guardian of the person to expend, for the education and maintenance of his ward, a sum in excess of the income of the ward’s estate; otherwise, the guardian shall not be allowed, for the education and maintenance of the ward, more than the net income of the estate. . . . ” Appellant complains that the trial court failed to give her credit for monies expended for maintenance and education of her ward. We find appellant’s point of error to be without merit since appellant was financially able to support her daughter without invading the income or corpus of the ward’s estate.

Appellant’s fiftieth point of error is as follows:

“THE COURT ERRED IN NOT TAKING INTO CONSIDERATION THE GENERAL AND USUAL PRACTICE IN THE AREA OF NOT REQUIRING VOUCHERS TO BE ATTACHED TO THE ANNUAL ACCOUNTINGS IN GUARDIANSHIP PROCEEDINGS.”

Sections 399 and 405 of the Texas Probate Code require supporting vouchers for annual accounts and accounts for final settlement. Probate courts should never dispense with the requirement of supporting vouchers. If vouchers cannot be obtained or have been lost or destroyed, then the probate court should have the guardian make other proof satisfactory to the court and such proof should be filed with the annual account or the final account.

Appellant’s fiftieth point of error is overruled.

The judgment of the trial court is affirmed in part and reversed and remanded in part. That portion of the cause that is remanded shall be for further proceedings not inconsistent with this opinion. Costs shall be taxed one-half to the appellant and one-half to the appellee.

      . Hereinafter cited as Texas Probate Code.


text:
    W. J. CULLIPHER et al., Appellants, v. WEATHERBY-GODBE CONSTRUCTION COMPANY, INC., Appellee.
    No. 8545.
    Court of Civil Appeals of Texas, Texarkana.
    July 31, 1978.
    Rehearing Denied Aug. 29, 1978.

      David R. Richards, Clinton & Richards, Austin, Kenneth H. Molberg, Law Offices of James C. Barber, Dallas, for appellants.
    Bennett W. Cervin, James C. Morriss, III, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   RAY, Justice.

This is a summary judgment case. W. J. Cullipher and other former employees of Weatherby-Godbe Construction Company, Inc., brought suit against Weatherby-Godbe Construction Company, Inc., (Company) ap-pellee (defendant), for back wages on the basis that the Company had failed to pay the prevailing wage rate. The trial court entered a summary judgment in favor of appellee Company. Appellants have perfected their appeal and submit four points of error for our consideration.

Appellants contend that they were entitled to a “prevailing wage” as established by the Dallas Independent School District (School District) in accordance with the requirements of Article 5159a, Tex.Rev.Civ. Stat.Ann. (1971). Appellants were employed by the Company as electricians. In the course of their employment, appellants worked on certain school construction projects performed under contract between the School District and the Company. Appellants assert that they are entitled to recover the difference between the wages they received and a “prevailing wage rate.” The Company contends that the School. District failed to establish a prevailing wage rate and therefore under Article 5159a it was entitled to the summary judgment decreed by the trial court. The trial court determined as a matter of law that the statutory requirements of Article 5159a had not been satisfied and that absent compliance with the statute appellants had no right of recovery.

Article 5159a provides the following:

“Section 1. Not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the work is performed, and not less than the general prevailing rate of per diem wages for legal holiday and overtime work, shall be paid to all laborers, workmen and mechanics employed by or on behalf of the State of Texas, or by or on behalf of any county, city and county, city, town, district or other political subdivision of the State, engaged in the construction of public works, exclusive of maintenance work. Laborers, workmen, and mechanics employed by contractors or subcontractors in the execution of any contract or contracts for public works with the State, or any officer or public body thereof, or in the execution of any contract or contracts for public works, with any county, city and county, city, town, district or other political subdivision of this State, or any officer or public body thereof, shall be deemed to be employed upon public works.
“Sec. 2. The public body awarding any contract for public work on behalf of the State, or on behalf of any county, city and county, city, town, district or other political subdivision thereof, or otherwise undertaking any public work, shall ascertain the general prevailing rate of per diem wages in the locality in which the work is to be performed for each craft or type of workman or mechanic needed to execute the contract, and shall specify in the call for bids for said contract, and in the contract itself, what the general prevailing rate of per diem wages in the said locality is for each craft or type of workman needed to execute the contract, also the prevailing rate for legal holiday and overtime work, and it shall be mandatory upon the contractor to whom the contract is awarded, and upon any subcontractor under him, to pay not less than the said specified rates to all laborers, workmen and mechanics employed by them in the execution of the contract. .
“Sec. 4. . The term ‘general prevailing rate of per diem wages’ shall be the rate determined upon as such rate by the public body awarding the contract, or authorizing the work, whose decision in the matter shall be final. It is mandatory that the public body state such prevailing wage as a sum certain, in dollars and cents. . . . ”

As can be seen, Sec. 2 requires that the contract and call for bids shall specify the prevailing wage rate for each job covered by the contract. Sec. 4 provides that the determination of the prevailing wage rate by the public body issuing the contract is final.

It is uncontradicted that the call for bids and the contracts involved in this case do not contain a schedule of prevailing wage rates. The unsigned general specifications make reference to prevailing wage rates, but such specifications are not referenced to the contract. It is necessary, therefore, to apply the contractual rules dealing with incorporation by reference in order to determine whether the prerequisite conditions of Article 5159a, Sec. 2, have been met. The rule accepted in Texas is that in order to be construed as a part of a signed contract, the extrinsic document must either be signed or must be referred to in the signed contract. Owen v. Hendricks, 433 S.W.2d 164, 167 (Tex.1968). In the instant case, only the contracts were signed and they made no reference to the payment of a prevailing wage in a sum certain in dollars and cents. Reference to the wage rate schedule is made in the unsigned, unreferenced specifications so that to incorporate the wage rate schedule into the contract it would be necessary to violate the rule above stated, i. e., incorporate an unsigned, unreferenced document into the contract.

We are of the opinion that the requirements of Sec. 2 have not been met.

The purpose of Article 5159a is two fold: (1) To inform the bidder/contractor of the wages he must pay his employees engaged in work on public contracts, and (2) to protect the workman from working at rates below the prevailing wages in the locality. Southern Prison Co. v. Rennels, 110 S.W.2d 606, 609 (Tex.Civ.App. Amarillo 1937, writ dism’d). The provisions of Sec. 2 are for the benefit of the bidder/contractor. Texas Highway Com’n v. El Paso Bldg. & Const. Tr. Coun., 149 Tex. 457, 234 S.W.2d 857, 861 (1950).

In Rennels, supra, the commissioner’s court did not determine the prevailing wage rate for the county. The contractor inquired and was orally informed by the court that the county paid laborers 25 cents an hour. The contractor paid his employees 30-40 cents an hour. One worker sued alleging that the prevailing wage was $1.00 an hour. The lower court found that the prevailing wage in the county was $1.00 an hour, and the contractor appealed. The court of civil appeals held that no one but the public body issuing the contract could determine the prevailing wage rate for the locality, and, as a prerequisite to recovery under Article 5159a, the employee must show that a generally prevailing wage rate had been determined by the public body issuing the contract.

We have concluded that it was a prerequisite to recovery by the workers that they prove that a prevailing wage rate schedule had been determined by the School District and that the schedule was included in the contract and call for bids. The only evidence presented shows that the School District took no action to adopt a wage rate schedule until January 9, 1974, a time after which all the pertinent contracts had been issued. The workers are thus precluded from recovery because no prevailing wage rate schedule had been determined “in dollars and cents” by the School District prior to the call for bids and the signing of the contracts.

The right of workers to receive a prevailing wage rate is strictly a matter of statutory authorization. This is a matter which may need legislative attention and only that body has the authority to amend the statute which will eliminate the problem pointed out in this case.

The judgment of the trial court is affirmed.

      . All statutory references herein are to Article 5159a, Tex.Rev.Civ.Stat.Ann. (1971), and its sections.