author: NYE, Chief Justice.

text:
    Thomas L. MARTIN, Appellant, v. Maria R. TREVINO et al., Appellees.
    No. 1287.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1978.
    Rehearing Granted Nov. 29, 1978.
    Second Motion for Rehearing Granted in Part, and Denied in Part Feb. 28, 1979.
    Appellant’s Third Motion for Rehearing Denied March 22, 1979.

      O. F. Jones, III, Victoria, Michael G. Mullen, Will G. Barber, Brown, Maroney, Rose, Baker & Barber, Austin, for appellant.
    R. D. Cullen, Cullen, Carsner & Williams, Victoria, for appellees.
    Thomas R. Beech, Houston, for Malpractice Defense Committee as amicus curiae.
   OPINION

NYE, Chief Justice.

This is a suit by a doctor against an attorney and his client. Originally, Maria R. Trevino, filed a medical malpractice suit against Dr. Thomas L. Martin. Dr. Martin filed a counterclaim against Mrs. Trevino and instituted a third-party action against Mrs. Trevino’s attorneys for filing the malpractice suit against him without just cause. The trial court granted the attorney and his client’s motion for summary judgment predicated on the sole ground that the doctor’s pleadings “fail[ed] to state a legal cause of action under the laws of the State of Texas, upon which relief can be granted.” Dr. Martin perfected his appeal to this Court.

Attorney J. Manuel Banales filed suit on behalf of his client, plaintiff Trevino, against defendant Dr. Martin for medical malpractice. Dr. Martin filed a general denial and a counterclaim against Mrs. Trevino and a third-party action against Attorney Banales and his law firm, Huerta, Pena, Beckman, Rodriguez & Alfaro (hereinafter “attorneys”) alleging, in substance, that plaintiff Trevino and her attorneys negligently filed the medical malpractice suit without just cause and without proper investigation to determine whether or not such suit could be legally or factually justified. Dr. Martin alleged that the filing of the medical malpractice suit resulted in “actual expenses and damages” and that “he had lost, and will in all reasonable probability lose in the future, revenue from his medical practice because of such unfounded claims and assertions against him . . ” The doctor further alleged that he was entitled to exemplary damages because the medical malpractice action had been filed by the attorneys “wantonly and with malice of forethought.” The plaintiff Trevino and the third-party defendant attorneys filed a general denial to Dr. Martin’s counterclaim and third-party action and in addition filed a third-party cross-action against Dr. Martin and his attorney which, in essence, duplicated the negligence allegations contained in Dr. Martin’s cross-action against them.

Plaintiff Trevino’s attorneys filed a motion for summary judgment predicated on the ground that the counterclaim and third-party action of Dr. Martin against them failed to state a cause of action. Shortly thereafter, plaintiff Trevino and third-party defendant attorneys filed a motion to “take a non-suit as to all affirmative actions for relief and damages heretofore asserted by each and all of them against Thomas L. Martin.” Dr. Martin then filed a supplemental counterclaim and third-party action against Mrs. Trevino and her attorneys which added the following counts to his prior negligence cause of action: 1) malicious prosecution, 2) abuse of process, 3) prima facie tort, and 4) breach of the Texas Code of Professional Responsibility (against the attorneys alone). Dr. Martin prayed for the same damages as originally alleged in his negligence counterclaim and third-party action.

Shortly thereafter, Dr. Martin and his attorney also filed a motion for summary judgment which, in essence, requested the court to grant a summary judgment in their favor in the event that the trial court granted plaintiff Trevino’s and third-party defendant attorneys’ motion for summary judgment. The trial court held a hearing on both motions. Based on the parties’ pleadings and stipulations, the trial court granted plaintiff Trevino’s and attorneys’ motion for non-suit and also granted her attorneys’ motion for summary judgment because the “Counter Claim and Supplemental Counter Claim on file herein fails to state a legal cause of action under the laws of the State of Texas upon which relief can be granted.” The trial court also granted Dr. Martin’s and his attorney’s motion for summary judgment on the same grounds.

In considering Dr. Martin’s points of error, we will keep in mind the familiar rules governing our review of summary judgments. Rule 166-A, Texas Rules of Civil Procedure, provides that a summary judgment is proper only upon a showing that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” One of the purposes of our summary judgment practice is to eliminate “unpatently, unmer-itorious or untenable defenses”. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). Such a judgment is proper only where it clearly appears that only a question of law is involved and that there is no genuine issue of fact. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962). Virtually all burdens are on the movant and the non-movant must be given the benefit of every reasonable inference which properly can be drawn in favor of his position. Gulbenkian v. Penn, supra; Valley Stockyards Company v. Kinsel, 369 S.W.2d 19, 20 (Tex.Sup.1963). Where the movant makes no attempt to negate the allegation in the non-movant’s pleadings, we must presume such allegations to be true for the purposes of our review. Jacobs v. Theimer, 519 S.W.2d 846, 847 (Tex.Sup.1975). Here the movant’s motion in effect challenges the sufficiency of the non-movant’s pleadings to raise a genuine issue of material fact which would constitute a cause of action; the operation of such a motion for summary judgment is closely analogous to a special exception challenging the sufficiency of the non-mov-ant’s pleadings as a matter of law. In such a case, the petition to which the motion is directed must be construed most liberally in favor of the pleader. Such a petition is entitled to the benefit of every reasonable inference which can properly be drawn in its favor. Garza v. Perez, 443 S.W.2d 855 (Tex.Civ.App.—Corpus Christi 1969, no writ). It must appear that the facts alleged by the non-movant established the absence of a right of action or of an insuperable barrier to a right of recovery. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.Sup.1972). See Smart v. Carlton, 557 S.W.2d 553, 555 (Tex.Civ.App.—Beaumont 1977, writ ref’d n. r. e.); Garza v. Perez, supra.

Dr. Martin brings forward a number of points of error generally contending that the trial court’s granting of the motion for summary judgment was erroneous because Dr. Martin pled valid causes of action as to each theory he relied upon.

In point of error 3A, Dr. Martin contends that his pleadings allege a viable cause of action based upon malicious prosecution. Dr. Martin’s supplemental counterclaim and third-party cross-action stated, in relevant part, as follows:

“The filing of this suit by Maria R. Trevino, and her attorneys, was unjustified and improperly investigated, and the Plaintiffs have now filed a Motion to Dismiss said cause. Accordingly, it is shown to the Court that the Defendant’s cause of action is now additionally founded upon the principles of a suit for malicious prosecution, in that, the original suit filed by the Plaintiff herein has been terminated in favor of this Defendant, there was an absence of probable cause for instituting the same, the Plaintiff and her attorneys instituted the same with malice, and such action resulting in damage to Dr. Martin.”

In order to maintain an action for malicious prosecution in Texas, a party must plead and prove that: 1) a civil judicial proceeding was previously filed; 2) the defendant in the malicious prosecution case caused the original suit to be filed; 3) the commencement of the original proceeding was malicious; 4) no probable cause existed for the filing of the original proceeding; 5) termination of the original suit in favor of the party prosecuting the later malicious prosecution action, and 6) damages conforming to the legal standards under Texas law. J. C. Penney Company v. Gilford, 422 S.W.2d 25, 28 (Tex.Civ.App.—Houston [1st Dist.] 1967, writ ref’d n. r. e.); Morris v. Taylor, 353 S.W.2d 956, 958 (Tex.Civ.App.—Austin 1962, writ ref’d n. r. e.), cert. den., 371 U.S. 842, 83 S.Ct. 71, 9 L.Ed.2d 78 (1962). The gravamen of an action for malicious prosecution is improperly making a party the subject of legal process to his detriment. Daniels v. Conrad, 331 S.W.2d 411, 415 (Tex.Civ.App.—Dallas 1959, writ ref’d n. r. e.). Texas adheres to the rule that an award of damages for prosecution of civil suits with malice and without probable cause cannot be recovered unless the party sued, suffers some interference, by reason of the suit, with his person or property. Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153 (1920); Salado College v. Davis, 47 Tex. 131 (1877); Louis v. Blalock, 543 S.W.2d 715 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.); Morris v. Blangger, 423 S.W.2d 133 (Tex.Civ.App.—Austin 1968, writ ref’d n. r. e.). A pleading which does not allege some interference with the complainant’s person or property fails to state a cause of action for malicious prosecution and is fatally defective. Smart v. Carlton, 557 S.W.2d 553 (Tex.Civ.App.—Beaumont 1977, writ ref’d n. r. e.); Morris v. Taylor, 353 S.W.2d 956 (Tex.Civ.App.—Austin 1962, writ ref’d n. r. e.), cert. den., 371 U.S. 842, 83 S.Ct. 71, 9 L.Ed.2d 78 (1962); Mosley v. Harkins, 147 S.W.2d 309 (Tex.Civ.App.—Amarillo 1941, no writ); Shapleigh Hardware Co. v. Keeland Bros., 60 S.W.2d 510 (Tex.Civ.App.—Galveston 1933, no writ).

The primary dispute between the parties concerning Dr. Martin’s alleged cause of action for malicious prosecution is whether or not Dr. Martin has pled special damages (interference with his person or property) as required by Texas law. Dr. Martin admits that his damages consist only of actual litigation expenses and “professional defamatory-type” damages. Dr. Martin argues, however, that the special damage rule is outmoded in today’s society where the number of groundless medical malpractice suits is increasing at an alarming rate. He also contends that there is no empirical support to justify the conclusion that the special damage requirement is necessary in order to avoid a chilling effect on good faith litigation. He contends that it is unlikely that the adoption of the opposite rule would result in endless counterlitigation and counter-counterlitigation. Finally, Dr. Martin argues that the injustice inherent in the special damage requirement is particularly apparent when groundless malpractice suits are brought against physicians because the physician’s professional reputation is unnecessarily damaged. This harm, Dr. Martin contends, is damage special to the physician and should be so recognized by this Court.

In support of Dr. Martin’s argument that this Court should either abolish the special damage requirement or conclude that harm to a doctor’s professional reputation and medical practice amounts, to special damages, the Malpractice Defense Committee, Amicus Curiae, states that Texas courts have already broadened the concept of special damages in bankruptcy and lunacy proceedings. The Malpractice Defense Committee relies on the following cases to support its argument that Texas courts have recognized allegations of damage to a businessman’s reputation sufficient to come within the purview of the special damage requirement: Pendleton v. Burkhalter, 432 S.W.2d 724 (Tex.Civ.App.—Houston [1st Dist.] 1968, writ ref’d n. r. e.); Daniels v. Conrad, 331 S.W.2d 411 (Tex.Civ.App.—Dallas 1959, writ ref’d n. r. e.); Lindsay v. Woods, 27 S.W.2d 263 (Tex.Civ.App.—Amarillo 1930, no writ); King v. D. Sullivan & Co., 92 S.W. 51 (Tex.Civ.App.1906, no writ).

We have examined each of these authorities and conclude that none of these cases liberalizes or makes an exception to the special damage requirement by recognizing damage to a businessman’s reputation as sufficient. It has long been the law in Texas that a suit for damages for malicious prosecution will not lie “unless the party sued suffers some interference, by [the] reason of the [original suit against him], with his person or property.” Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153 (1920). This rule was followed in each of the cases cited by the Malpractice Defense Committee. In Pendleton, Daniels and Lindsay, supra, the courts found that the complainant had suffered interference with his person because the original malicious lunacy proceedings had resulted either in commitment to a mental institution or physical detention for a mental examination. In King, the malicious filing of bankruptcy proceedings interfered with the property of the complainant because jurisdiction of the bankruptcy court over all of his property vests upon filing of the bankruptcy petition. See e. g., 8 C.J.S. Bankruptcy § 140(1) (1962).

We are bound by the doctrine of stare decisis as set forth by the Texas Supreme Court. See Swilley v. McCain, 374 S.W.2d 871 (Tex.Sup.1964); Mitchell v. Mitchell, 157 Tex. 346, 303 S.W.2d 352 (1957). Here Dr. Martin did not allege that the original malpractice suit interfered in any way with his person or property. The special damage rule was initially adopted by our Supreme Court for policy reasons to assure every potential litigant free and open access to the judicial system without fear of a coun-tersuit for malicious prosecution. As stated by our Supreme Court over a hundred years ago in Salado College v. Davis, 47 Tex. 131, 135-36 (1877):

“In ordinary cases, where no further wrongful act is complained of than the institution of a groundless suit, though done knowingly and with intent to harass, the award of cost is, in contemplation of law, full compensation for the unjust vexation. (Citation omitted).
In such cases, the defendant recovers his cost ‘but no allowance is made for his time, indirect loss, annoyance, or counsel fees . . . ’ Every defendant against whom an action is ‘unnecessarily’ brought, experiences some injury or inconvenience beyond what the costs will compensate him for.’ This injury or inconvenience results from a resort to the legally-constituted tribunals; and it seems to be the policy of the law to content itself with meting out something less than our ideas of natural justice would demand, rather than to increase the risks attending and discouraging such a resort, and at the same time add to the difficulties and intricacies of ordinary litigation.”

Many of these sound policy considerations have prompted other jurisdictions to adopt the special damage requirement. See Birnbaum, “Physicians Counterattack: Liability of Lawyers for Instituting Unjustified Medical Malpractice Actions”, 45 Fordham L.Rev. 1003, 1022 (1977).

We are of the opinion that the general policy reasons for adopting the special damage rule in Texas remain viable today. If special damages result, the defendant has his remedy. The special damage requirement assures good faith litigants access to the judicial system without fear of intimidation by a countersuit for malicious prosecution. The special damage requirement also prevents successful defendants in the initial proceeding from using their favorable judgment as a reason to institute a new suit based on malicious prosecution, resulting in needless and endless vexatious lawsuits. Furthermore, it is not the duty of this Court to gather and to interpret empirical data for the purpose of determining whether or not the special damage rule should be abolished. This is a legislative task which has already been undertaken in part by the 65th Texas Legislature. See Medical Liability and Insurance Improvement Act, Article 4590i, Tex.Rev.Civ.Stat. Ann. (Supp.1978). This Act creates a cause of action for bad faith filing of a health care liability claim which will go into effect on January 31, 1979, in the event that the State Bar of Texas fails to certify to the Supreme Court that it has adopted appropriate disciplinary measures against attorneys who file such bad faith claims. Tex.Rev.Civ.Stat.Ann. art. 4590i § 8.05 (Supp.1978). Thus, the Legislature, the Texas Supreme Court and the State Bar of Texas are currently working on what we believe to be an appropriate solution to the groundless medical malpractice problem. Appellant’s point of error 3A is overruled.

In point of error 3B, Dr. Martin contends that the trial court erred in granting the summary judgment because his pleadings alleged a viable cause of action based upon abuse of process.' Dr. Martin’s pleadings, in relevant part, stated:

“The filing of the suit by the Plaintiff and her attorneys herein constituted an abuse of process, producing and proximately resulting the damages set forth in the original Counter Claim; in this connection, Defendant alleges that the Plaintiff improperly procured the issuance of the citation upon him in this cause, with the intent and malice of causing harm to this Defendant, and which did in fact result in harm to this Defendant.”

Appellees contend that Dr. Martin failed to allege any abuse or misuse of process after its original issuance and, therefore, failed to plead a viable cause of action for abuse of process.

The term “process” (judicial) is traditionally defined as, “[t]he writ, summons, mandate or other process which is used to inform the defendant of the institution of (judicial) proceedings against him and to compel his appearance . . .’’in court. Black’s Law Dictionary, 1370 (4th Ed. 1951). In a narrow sense process refers to individual writs issued by the court during or after litigation. Process has been broadly interpreted to encompass the entire range of procedures incident to litigation. Black’s Law Dictionary, 1370 (4th Ed. 1951). The gravamen of an action for abuse of process is the misuse of process, whether properly or improperly obtained, for any purpose other than that which it was designed to accomplish. Restatement of Torts 2d § 682 Comment a (1966). See also Tandy Corporation v. McGregor, 527 S.W.2d 246 (Tex.Civ.App.—Texarkana 1975, writ ref’d n. r. e.); Blackstock v. Tatum, 396 S.W.2d 463 (Tex.Civ.App.—Houston 1965, no writ). In contrast to an action for abuse of process, an action for malicious prosecution is generally available against one who maliciously caused process to issue and without probable or reasonable cause. In an abuse of process action, however, generally the original issuance of a legal process is justified, but the process itself is subsequently used for a purpose for which it was not designed. W. Prosser, Handbook of the Law of Torts § 121, at 856 (4th Ed. 1971). See Tandy Corporation v. McGregor, supra; Blackstock v. Tatum, supra.

In order for a person to recover for abuse of process, he must plead and prove three essential elements: 1) that the defendant made an illegal, improper, or perverted use of the process, a use neither warranted nor authorized by the process; 2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of the process; and 3) that damage resulted to the plaintiff as a result of such irregular act. J. C. Penney Co. v. Gilford, 422 S.W.2d 25, 31 (Tex.Civ.App.—Houston [1st Dist.] 1967, writ ref’d n. r. e.).

In this case, Dr. Martin alleged that “. . . the Plaintiff improperly procured the issuance of the citation . . . ” The mere procurement or issuance with a malicious intent or without probable cause is not actionable. This is so because there must be an improper use of the process after its issuance. Tandy Corporation v. McGregor, 527 S.W.2d 246 (Tex.Civ.App.—Texarkana 1975, writ ref’d n. r. e.); Blackstock v. Tatum, 396 S.W.2d 463 (Tex.Civ.App.—Houston 1965, no writ); Restatement of the Law of Torts 2d, § 682 Comment a (1966). Texas has generally recognized a cause of action for abuse of process in situations where the original process, such as a writ of garnishment or writ of sequestration, has been abused to accomplish an end other than that which the writ was designed to accomplish. See Peerless Oil & Gas Co. v. Teas, 138 S.W.2d 637 (Tex.Civ.App.—San Antonio 1940), aff’d, 138 Tex. 301, 158 S.W.2d 758 (1942); Rogers v. O’Barr & Dinwiddie, 76 S.W. 593 (Tex.Civ.App.1903, no writ).

Dr. Martin argues that his allegations, in effect, state that “Mrs. Trevino and her attorneys secured the issuance of citation in the malpractice case, not because of a good faith belief in the possible merit of the suit, but only in an attempt to do harm to Dr. Martin (e. g., trying to profit at his expense by coercing a settlement).” Dr. Martin’s pleadings, however, do not suggest that Mrs. Trevino or her attorneys actually did attempt to coerce a settlement. Even if we assume that the original medical malpractice action was maliciously instituted, Dr. Martin’s allegations are fatally defective because they fail to allege an improper use of the process other than the mere institution of the civil action. There were no damages other than that necessarily incident to filing a lawsuit. See e. g., Joseph v. Markovitz, 27 Ariz.App. 122, 551 P.2d 571, 575 (1976); Ewert v. Wieboldt Stores, Inc., 38 Ill.App.3d 42, 347 N.E.2d 242, 244 (1976); Miller v. Stern, 262 App.Div. 5, 27 N.Y.S.2d 374, 375-76 (1941). Appellant Martin’s point of error 3B is overruled.

In point of error 3C, Dr. Martin contends that his pleadings state a valid cause of action for damages against Mrs. Trevino’s attorneys for breach of their professional responsibility. Dr. Martin’s supplemental cross pleadings allege that the professional responsibilities imposed on all attorneys under Texas law prohibit attorneys from filing frivolous suits. Dr. Martin further alleged that Mrs. Trevino’s attorneys filed the original medical malpractice suit against him “without proper investigation” and “without an informed basis of determining prior to the filing of such suit that such suit had reasonable merit.”

Section 3 of Article 320A-1, Tex.Rev.Civ. Stat.Ann. (1973), provides, in essence, that all persons who practice law in the State of Texas are members of the State Bar and are subject to the provisions of the State Bar Act and the rules adopted by the Supreme Court of Texas pursuant to the authority granted in Section 4 of that article. The American Bar Association’s Code of Professional Responsibility has been adopted, with minor changes, by the Texas Supreme Court. See the Appendix to Title 14, Sections 304-320A-1 (1973 and Supp.1978). Dr. Martin relies on Disciplinary Rule 7-102(A) which provides in relevant part:

“(A) In his representations of a client, a lawyer shall not: (1) [f]ile a suit, assert a position, ... or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another. (2) Knowingly advance a claim that is unwarranted under existing law, except that he may advance such claim . . . if it can be supported by good faith argument for an extension, modification, or reversal of existing law.”

Dr. Martin argues that a cause of action based upon the breach of professional responsibility standards should be available against attorneys filing unjustified medical malpractice suits because [b] “the public, including Dr. Martin, should be entitled to professional accountability by the Bar in this regard.” Regardless of the arguable merit of such a contention, Dr. Martin’s point of error 3C must be overruled because the violation by an attorney of the disciplinary rules adopted by the Texas Supreme Court does not of itself create a private cause of action.

Assuming, as we must, that Dr. Martin could prove that Mrs. Trevino’s attorneys had violated Disciplinary Rule 7-102(A), Martin failed to file a grievance under procedures enumerated in the State Bar Rules adopted by the Supreme Court for the redress of alleged professional misconduct as defined in Section 9. The sole remedial method for a violation of the Code is the imposition of disciplinary measures after a hearing by the District Grievance Committee which is authorized to “receive complaints of professional misconduct” and “make such investigation of each complaint [prior] to taking action as set forth [in] § 16.” Appendix to Title 14, §§ 11,12 & 16 (1973). The remedy provided pursuant to these sections for the professional misconduct of an attorney is a public one, not a private one. The duties set forth in the Code of Professional Responsibility establish the minimum level of competence required of attorneys for the protection of the public. A violation thereof will not give rise to a private cause of action. Merritt-Chapman & Scott Corp. v. Elgin Coal, Inc., 358 F.Supp. 17, 22 (E.D.Tenn.1972); Hill v. Willmott, 561 S.W.2d 331, 333-34 (Ky.App.1978); Spencer v. Burglass, 337 So.2d 596, 600 (La.App.1976).

In point of error 3D, Dr. Martin contends that the trial court’s summary judgment was erroneous because his pleadings stated a viable cause of action based upon negligence. In the counterpleading Dr. Martin filed before plaintiff Trevino’s medical malpractice claim was non-suited, Dr. Martin alleged a negligence-type cause of action against both Mrs. Trevino and her attorneys, in essence, as follows: 1) that plaintiff Trevino’s attorneys acted as Trevino’s agent and legal representative so that the consequences of their actions are imputable to her and she is legally responsible to Dr. Martin for their acts; 2) that the attorneys filed the medical malpractice suit in question when, in fact, no justification therefor existed, and without proper investigation prior to the filing of such suit; 3) that the attorneys were aware that the filing of an unjustified medical malpractice suit would be damaging to Dr. Martin’s reputation and would directly and proximately cause him to incur additional expense and to suffer loss of revenue from his medical practice; 4) that the attorneys were also aware that medical malpractice suits are frequently marginal and detrimental unless proper investigation is made prior to the time the suit is instituted; 5) that the attorneys made no investigation and did not determine prior to the filing of the suit whether or not there was any proper justification; 6) that the defendant attorneys did in fact legally owe Dr. Martin the duty of investigating the claim they proposed to file and their failure to do so constituted negligent conduct which resulted in damage to Dr. Martin and that such negligence is imputable to plaintiff Trevino; 7) that Dr. Martin incurred actual expenses and damages of at least $5,000.00 and that he had lost $25,000.00 in revenue from his medical practice because of such unfounded claims asserted by Mrs. Trevino and her attorneys; and 8) that Mrs. Trevino’s attorneys acted wantonly and with malice aforethought so that Dr. Martin should be entitled to recover exemplary damages of at least $25,-000.00.

Dr. Martin asserts that the controlling question presented to this Court is whether or not, under Texas law, an attorney has the duty to investigate a claim he proposes to file and to determine whether or not the suit is justified prior to the time the actual cause is filed. Dr. Martin asserts that “[t]his is a case of first impression in Texas on this particular point with respect to counterlitigation by a professional person, such as a physician, who has been damaged by the mere filing of an unjustified defamatory-type malpractice suit.”

Other courts in Texas have considered the general issue of whether or not an attorney should be held liable in negligence to a party other than his client for damages resulting from the performance of the attorney’s services. See Bryan & Amidei v. Law, 435 S.W.2d 587 (Tex.Civ.App.—Fort Worth 1968, no writ); Traders & General Ins. Co. v. Keith, 107 S.W.2d 710 (Tex.Civ.App.—Amarillo 1937, writ dism’d); Citizens’ National Bank of Cameron v. Morrison, 50 S.W.2d 346 (Tex.Civ.App.—Austin 1932, no writ). These cases have generally concluded that an attorney is exempt from liability to a party other than his client for damages resulting in the performance of service which engages and requires the office or the professional training, skill, and authority of an attorney because an attorney deals at arm’s length with adverse parties, and that he is not liable to such adverse parties for his actions, as an attorney in behalf of his client. The primary duty the attorney owes is to his client so long as it is compatible with his professional responsibility. If he violates this responsibility, the remedy is public, not private.

In Bryan & Amidei v. Law, supra at 593, the court stated:

“It is a general rule that the duties of the attorney which arise from the relation of attorney and client, are due from the attorney to his client only, and not to third persons. The latter have not retained or employed the attorney, nor has he rendered any services for them, at their request or in their interest. No privity of contract exists between them and the attorney. For such injuries, therefore, as third persons may sustain by the reason of the failure or neglect of the attorney to perform a duty which he owed to his client only, they have no right of action against the attorney.”

The majority of other jurisdictions considering an attorney’s liability to third parties for his negligence is in accordance with these principles. See cases collected in Annotation, “Attorney’s Liability, To One Other Than His Immediate Client for Consequences of Negligence in Carrying Out Legal Duties”, 45 A.L.R.3d 1181, 1187 (1972); Birnbaum, supra at 1066-1074.

Our review of Texas authorities and the approach taken in other jurisdictions leads us to the conclusion that this is not the proper case to abolish the privity requirement. Dr. Martin stands in a pure adversary relationship with plaintiff Trevino and her attorneys. The doctor is not an intended beneficiary of the attorneys’ services. This view is consistent with virtually every other case which has considered the negligence theory in cases such as this where the physician believes he has been sued for medical malpractice without just cause. Drago v. Buonagurio, 61 A.D.2d 282, 402 N.Y.S.2d 250, 252 (1978); Hill v. Willmott, 561 S.W.2d 331, 333-34 (Ky.App.1978); Spencer v. Burglass, 337 So.2d 596, 600-601 (La.App.1976); Birnbaum, supra at 1072-74. Point of error 3D is overruled.

In point of error 3E, Dr. Martin, in effect, requests this Court to recognize a nameless tort concept, adopted and known by some jurisdictions, as “Prima Facie Tort”. Dr. Martin contends that his coun-terpleadings stated a valid cause of action because he alleged: “The actions of the Plaintiff and her attorneys in filing this lawsuit amounted to a ‘Prima Facie Tort’, which included the infliction of intentional harm, resulting in damage, without excuse or justification, resulting from unjustified, intentional, and malicious actions on the part of the Plaintiff and her attorneys, which produced and proximately caused the damages set forth in the Defendant’s Counter Claim.”

Prima Facie Tort can be defined as: the infliction of an intentional harm without excuse or justification by an act or series of acts which otherwise would be lawful and which results in special damage. It does not fall within the categorías of traditional torts. See Drago v. Buonagurio, 61 A.D.2d 282, 402 N.Y.S.2d 250, 252 (1978) and authorities cited therein. Professor Birnb-aum has analyzed the historical development of the Prima Facie Tort concept and its application to medical malpractice situations. The basic elements of the Prima Facie Tort cause of action that are apparently emerging include: 1) an intent to injure on the part of the defendant; 2) a lack of justification in so acting; and 3) special damages, alleged with particularity. See Birnbaum, supra at 1054; see also, Comment Note — Prima Facie Tort, 16 A.L. R.3d 1191, 1215-1220 (1967). Generally, an allegation that the physician has sustained damage to his professional standing and reputation is not sufficient.

In support of his contention that this Court should adopt the Prima Facie Tort concept in this case, and in so doing, recognize damage to professional reputation and standing as a sufficient showing of damages, Dr. Martin relies primarily upon Drago v. Buonagurio, 61 A.D.2d 282, 402 N.Y.S.2d 250 (1978). While Drago did adopt the Prima Facie Tort concept, apparently without the imposition of the special damage requirement, that court carefully restricted the application of its decision to the unique factual context before it by stating:

“ . nor should this opinion be read as creating or recognizing a distinctly new cause of action whenever a physician escapes malpractice liability and claims he was wrongfully charged in the first place.” Drago, supra, 402 N.Y.S.2d at 253.

In Drago, the physician alleged: 1) that he had no association, directly or indirectly, with the patient who instituted the original medical malpractice action; and 2) that he had been served as a defendant for discovery purposes in order for the malpractice plaintiff to determine where the responsibility could be placed. Drago, supra, 402 N.Y.S.2d at 252. The Drago court considered these facts to be unique and controlling.

The case before us does not present the same or similar facts. If we were to adopt the Prima Facie Tort concept in this case, the effect would be to circumvent the special damages required in malicious prosecution actions and most Prima Facie Tort cases, and the privity requirement of negligence actions brought against an attorney by a third party not in privity with the attorney’s client. This we will not do. Furthermore, our adoption of the Prima Facie Tort concept in this cause would preempt the Legislature’s adoption of the Medical Liability and Insurance Improvement Act and its provisions regarding the institution of bad faith medical care claims. If this particular type of a cause of action has merit, it should be mandated by the Legislature as a matter of public policy, and not by our courts. Dr. Martin’s point of error 3E is overruled.

In point of error two, Dr. Martin has failed to brief the point or present arguments relative to his formal complaint. A point that is not briefed need not be considered on appeal. All the other points of error have been considered and are overruled.

The judgment of the trial court is AFFIRMED.

OPINION ON MOTION FOR REHEARING

On motion for rehearing, Dr. Martin reasserts his point of error that Mrs. Trevino was not a party to her attorneys’ motion for summary judgment and, therefore, the trial court erred in rendering a summary take nothing judgment in favor of Mrs. Trevino and in denying Dr. Martin any relief against her. When we considered this point of error in our original opinion, we did not consider that the trial court had treated Mrs. Trevino as one of the summary judgment movants, but rather, that the trial court had on its own motion dismissed Mrs. Trevino from the lawsuit. This specific point of error, however, was overruled on the basis that Dr. Martin had failed to brief it. If on the other hand the trial judge had, in fact, treated Mrs. Trevino as one of the summary judgment movants when she was not, then the trial court’s judgment would not be final and such error would. be to fundamental error of which we must recognize on our own motion. In such a situation, we would be required to dismiss the appeal for lack of jurisdiction. See Dixon v. Shirley, 531 S.W.2d 386 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.).

That portion of the trial court’s final judgment which granted the summary judgment motion filed by Mrs. Trevino’s attorneys does not state that summary judgment is also granted as to Mrs. Trevino. An examination of the pleadings, motions and final judgment contained in this appellate record does not reveal the precise reason for which the trial court denied Dr. Martin any relief as to Mrs. Trevino. The judgment does say “that no further relief will be granted to any party thereto.” Compare: North East Independent School Dist. v. Aldridge, 400 S.W.2d 893, 898 (Tex.Sup.1966).

Since the record is not clear, we are hereby granting appellant’s motion for rehearing. We hereby reverse the judgment of the trial court and remand it to that court for the purpose of entering a final judgment in accordance with the original opinion and this opinion on motion for rehearing herein as to all parties herein.

OPINION ON SECOND MOTION FOR REHEARING

Appellant has filed a second motion for rehearing and a request to amend point of error number two (point of error number eight in his second motion for rehearing) so as to clarify a possible procedural point of law. In a letter to the Clerk of this Court, the appellant states, “It is not now, and has never been, appellant’s intent in raising these Points of Error to question the finality or procedural propriety of the trial court’s judgment, including absence of a recital that Mrs. Trevino joined in her attorneys’ motion for summary judgment.” The appellant contends that “[the] dismissal for failure to state a claim is the only trial court action appellant intends to complain of in this Court or the Texas Supreme Court with respect to the foregoing Points of Error.”

This was our interpretation of what took place in the trial court’s judgment in our original opinion. It is not necessary for appellant to amend point of error number two (or point of error number eight in appellant’s second motion for rehearing) in view of this clarification. We believe that we were correct in the original opinion in disposing of appellant’s second point of error.

Accordingly, the opinion on appellant’s first motion for rehearing is withdrawn. Our original opinion is reinstated as originally handed down.

Appellant’s second motion for rehearing is in all other respects overruled.

      . The parties stipulated that upon an actual trial, the following issues of fact would be raised by the evidence: 1) question “as to the justification of the attorneys for the Plaintiff, Maria R. Trevino, in filing the lawsuit in question . . . 2) “ . . [as] to whether or not the attorneys for the Plaintiff, Maria R. Trevino, properly investigated the claims being made against Dr. Thomas L. Martin . . 3) “ . . [E]vidence would be introduced showing that prior to the filing of the lawsuit by the attorneys for Maria R. Trevino, that they had made no inspection of the medical records of the Citizen’s Memorial Hospital or of Dr. Thomas L. Martin, respecting the treatment of Maria R. Trevino . . . and 4) “ . Dr. Martin would establish that as a result of the filing of this lawsuit, he did sustain and suffer some financial damage.”

      . The Act defines “health care liability claim” as follows:
      “a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.” Tex.Rev.Civ.Stat.Ann. art. 4590i § 1.03(a)(4) (Supp.1978).
      This definition is broad enough to encompass a malpractice suit brought against a physician for negligent medical treatment.
      The provisions relating to bad faith filing of a health care claim are as follows:
      “Sec. 8.01. With respect to a health care liability claim actually filed, a cause of action based on bad faith may be filed and litigated in a separate lawsuit.
      “Sec. 8.02. As used in this subchapter, ‘bad faith’ means to file and maintain a claim with reckless disregard as to whether or not reasonable grounds exist for asserting the claim.
      “Sec. 8.03. At least 60 days before the filing of a suit based on bad faith in any court of this state, a person or his authorized agent asserting a bad faith cause of action shall give written notice by certified mail, return receipt requested, of the claim, to the defendant or his attorney against whom the claim is being made.
      “Sec. 8.04. The right of action created in this subchapter shall lie against any claimant or defendant or claimant’s or defendant’s attorney, or both, who file a health care liability claim in bad faith, or file a claim under this article in bad faith, and the measure of damages with respect thereto shall be limited to $100,000 for compensatory and exemplary damages, as applicable.”

      . See Birnbaum, Physician’s Counter Attack: Liability of Lawyers for Instituting Unjustified Medical Malpractice Actions, 45 Fordham L.Rev. 1003, 1051-1066 (1977).


source: Caselaw Access Project

license: Public Domain

text:
    BROWNSVILLE & MATAMOROS BRIDGE COMPANY, Appellant, v. Donald Keith NULL, et al., Appellees.
    No. 1321.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 19, 1978.
    Rehearing Denied Jan. 25, 1979 Overruled and Granted with Opinion.
    Amigoland Feb. 22, 1979 Overruled.
    Null March 1, 1979 Overruled.

      Robert B. Benton, O’Leary, Sanchez & Benton, Brownsville, Harry F. Maddin, Maddin, White & Brin, Inc., Corpus Christi, for appellant.
    John E. Lewis, McAllen, Gordon L. Bris-coe, John W. Black, III, Stephen E. Ulrich, Royston, Rayzor, Vickery & Williams, Brownsville, for appellees.
   OPINION

NYE, Chief Justice.

This is a suit for personal injuries. Ap-pellee, Donald Null, an employee of a subcontractor, brought suit against appellant, Brownsville & Matamoros Bridge Company, and appellees, Amigoland, Inc., and Ballen-ger Construction Company, to recover damages for personal injuries he sustained when a wooden staircase attached to the exterior of a frame building owned by the Bridge Company collapsed as he descended the stairs. In response to special issues, the jury found that defendant Amigoland, Inc. committed acts of negligence which were a proximate cause of Null’s injuries, but failed to find defendants Brownsville & Ma-tamoros Bridge Company or Ballenger Construction Company guilty of negligence. The jury convicted plaintiff Null of contributory negligence. However, the trial court granted Null’s and Amigoland’s motions to disregard certain special issues and entered a judgment non obstante veredicto awarding recovery against Brownsville & Mata-moros Bridge Company. The trial court denied the Bridge Company’s claims for contribution and/or indemnity against Ami-goland and the Construction Company. Brownsville & Matamoros Bridge Company appeals to this Court from the trial court’s judgment.

The Bridge Company and the National Republic of Mexico jointly own the international bridge, which spans the Rio Grande River between Brownsville, Texas, and Ma-tamoros, Mexico. The Bridge Company also owns approximately five acres of land and several buildings on the Texas side of the bridge. The Bridge Company is in the business of collecting tolls from vehicles and pedestrians who cross the bridge and in leasing office space to various governmental agencies which conduct custom and inspection operations for traffic moving across the United States and Mexican borders.

Amigoland, at the time of the accident, was developing a shopping center on a tract of land not far from the bridge. The development plans contemplated extending a shopping mall access road to join with the existing road leading to the bridge. This construction required the relocation of certain buildings owned by the Bridge Company. Amigoland’s general contractor was Ballenger Construction Company, which was in charge of the paving improvements. In order to effectuate these plans, Amigo-land sought the Bridge Company’s approval to alter the existing road crossing the Bridge Company’s land and to relocate some of the Bridge Company’s buildings. The Construction Company and Amigoland had a series of meetings with the Bridge Company and its tenants to discuss the general proposal. The Bridge Company’s tenants (the various governmental agencies) did not object to the proposed relocation of the buildings provided Amigoland did not interrupt the operation of their facilities. In accordance with these discussions, the Bridge Company drafted a letter agreement which was signed and accepted by Amigo-land. This letter agreement, in essence, granted Amigoland permission to relocate the buildings provided that Amigoland would furnish temporary office space and pay all of the direct and indirect moving expenses. Thereafter, Amigoland hired M. Castillo and Sons, a moving company, to move the buildings.

The building upon which plaintiff Null sustained his injuries during the relocation process was known as the “Customs building” or the “primary inspection building.” This wooden frame building was primarily a one-story rectangular structure with an open porch which was supported by beams. One end of the building was two stories high. There was an outside entrance to the second story office which was accessible by an outside wooden stairway. Three governmental agencies, including the U. S. Customs and Immigration, occupied offices on the first story of the building and officials of the Bridge Company occupied the second floor office. Floodlights, which were used to illuminate nighttime custom inspections, were located on the corner of the second story of this building.

During the relocation process, the occupants of the primary inspection station moved across the street to a temporary mobile home provided by Amigoland. Although it was agreed that the building was not to be used during the relocation process, it was contemplated that the existing floodlights would be necessary to illuminate the nighttime inspections. It was, therefore, necessary to hire an electrician to disconnect all of the electrical lines prior to moving the building and to reconnect the electrical lines to the floodlights on the second floor for each night’s operation. Amigo-land asked the Construction Company to obtain bids from electrical contractors to do the necessary electrical work. The Construction Company thereafter hired Null’s employer, Star Electric, for the job.

Plaintiff Null was in charge of the electrical work for Star Electric. His general instructions from his employer, Star Electric, were to disconnect all the electrical connections from the building and to provide temporary electrical service as needed. Because it would take the moving company several days to move the building, Null disconnected the temporary electrical lines in the morning and then reconnected the lines after the moving company had stopped work in the afternoon. The floodlights on the second story of the Customs building could be illuminated from the ground by connecting a temporary electrical loop. The direction of the floodlights had to be re-adjusted from a vantage point on the first story roof of the building as the position of the building changed periodically during the course of the move.

In order to move the building, the moving company first jacked the building up off the ground and placed it on rails. As a result of the building being placed on the rails, the outside stairway was raised completely off the ground so that the lower steps were no longer touching the ground. The 4" X 4" wood braces which supported the stairway were removed. The moving company attempted to brace the stairs by-placing a small chain around the middle of the stairway and nailing the chain to the side of the building.

Plaintiff Null was injured on June 30, 1970, five days after he first commenced his electrical work on the building. During this time span, Null had used the stairway on several occasions to reach the roof. The testimony showed that he had used the stairway before the building had been lifted from the ground, after the building had been placed on rails but before it had been moved, and after the actual move of the building commenced. On the day of the accident, Null and his helper, Larry Vano, had climbed the stairway of the building to reach the roof and had adjusted the spot lights. After they had completed the necessary adjustments and were descending the stairs, the stairs fell. Vano had almost reached the ground and Null had descended one or two stairs from the platform at the top of the stairway when the stairway gave away. Null was seriously injured.

Null filed suit against the Bridge Company, Amigoland and the Construction Company alleging that each defendant possessed and shared control of the stairway which constituted a hazardous condition, and that each defendant had supplied the stairway for Null’s use in adjusting the outside floodlights. Null alleged that each defendant was guilty of negligence which proximately caused his injuries by: 1) failing to inspect the stairway; 2) failing to warn Null that the stairway was not safe to use; and 3) failing to make the stairway safe for Null’s use. The three named defendants filed cross-actions against each other seeking indemnity and/or contribution. In addition, each defendant filed a third party action against M. Castillo & Sons, the moving company, for indemnity and/or contribution.

During the trial, Null entered into a settlement agreement with Amigoland, Ballen-ger and Castillo & Sons. The exact terms of the agreement were not disclosed to the court or to the jury. At the close of plaintiff Null’s evidence, Null took a nonsuit as to each defendant except the Bridge Company. The trial court denied the Bridge Company’s motion for directed verdict. Thereafter, the case went to the jury on the issues of the Bridge Company’s negligence, Null’s contributory negligence and the Bridge Company’s cross-claims and third party action for indemnity and/or contribution against the other defendants.

The jury, in response to special issues: 1) found that upon the occasion in question, the Bridge Company’s building with its outside stairway was not reasonably safe for use by Null in the performance of his work; 2) found that such unsafe condition was a proximate cause of the injuries sustained by Null; 3) failed to find that the Bridge Company knew that the stairway was not reasonably safe for use by Null; 4) found that such unsafe condition could have been discovered by the Bridge Company by means of reasonable inspection; 5) found that the Bridge Company failed to inspect the stairway to determine whether the same was reasonably safe for use by Null; 6) did not find that such failure was negligence; 7) found that such failure was a proximate cause of the occurrence in question; 8) found that the Bridge Company failed to make the stairway in question reasonably safe for use by Null; 9) did not find that such failure was negligence; 10) found that such failure was a proximate cause of the occurrence in question; and 11) found Null’s damages to be $256,979.50.

Regarding Null’s contributory negligence, the jury found: 12) that Null was negligent in using the Custom House stairs after the building was jacked up on the railings; and 13) and 14) that such was negligence and a proximate cause of Null’s injuries. In response to special issues concerning Amigo-land, the jury found: 15) that Amigoland was the general contractor for the relocation of the buildings; 16) that Amigoland’s failure to a) inspect, b) repair the stairs, or c) warn Null constituted negligence; and 17) that each failure was a proximate cause of the occurrence in question. The jury failed to find that Ballenger Construction’s failure to inspect, repair or warn was negligence or a proximate cause of Null’s injuries.

The Bridge Company filed a motion for judgment on the verdict which was denied by the trial court. The trial court granted Null’s motion to disregard the jury’s answers to special issues Nos. 3, 6,9,13 and 14 above and for judgment non obstante vere-dicto; and granted Amigoland’s motion to disregard the jury’s answers to special issues Nos. 15, 16 and 17 above and for judgment non obstante veredicto. Thereafter, the trial court entered judgment against the Bridge Company in favor of Null for $256,979.50 damages, and denied the Bridge Company’s claims for indemnity and/or contribution from the cross-defendants.

The Bridge Company brings forward points of error complaining of the trial court’s action in granting appellees’ motions to disregard special issues and in entering a judgment non obstante veredicto. In considering these points of error, we shall keep in mind the familiar rules concerning appeals of this nature.

In general, a judgment non ob-stante veredicto can be upheld on appeal when a directed verdict would have been proper. Villarreal v. Boggus Motor Co., 471 S.W.2d 615 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.). Special issue findings may be disregarded if they are immaterial or have no support in the evidence. Eubanks v. Winn, 420 S.W.2d 698, 701 (Tex.Sup.1967); Ramirez v. National Standard Ins. Co., 563 S.W.2d 837 (Tex.Civ.App.—Corpus Christi 1978, no writ). In determining a no evidence point, all testimony must be considered in the light most favorable to the party against whom the motion is sought and every reasonable intendment deducible from the evidence is to be indulged in such party’s favor. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962); Newitt v. Camden Drilling Co., 552 S.W.2d 928, 931 (Tex.Civ.App.—Corpus Christi 1977, no writ). Where the special issues have support in the evidence, the trial judge may not render judgment non obstante veredicto even though the great weight and preponderance of the evidence might be to the contrary. Gulf, Colorado & Santa Fe Railway Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933 (Tex.Sup.1958), cert. denied, 358 U.S. 874, 79 S.Ct. 111, 3 L.Ed.2d 105; Newitt v. Camden Drilling Co., 552 S.W.2d 928, 931 (Tex.Civ.App.—Corpus Christi 1977, no writ). Rule 301, T.R.C.P. The trial court may not properly disregard a jury’s negative finding and substitute its own affirmative finding unless the evidence conclusively establishes such an affirmative finding. See Bond v. Otis Elevator Co., 388 S.W.2d 681, 685 (Tex.Sup.1965); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 30 Tex.L.Rev. 361 (1960).

In points of error one through three, the Bridge Company complains that the trial court erred in rendering any judgment against it because: 1) there was no evidence of any probative force to establish that the Bridge Company breached any legal duty to Null; 2) the evidence conclusively established that the accident was solely the result of a transitory condition inherent in the moving process; and 3) the evidence established that the Bridge Company surrendered control of the building to others prior to Null’s accident. In these points of error, the Bridge Company, in essence, contends that Null failed to meet his initial burden of proving a legal duty owed to him by the Bridge Company. We agree.

Null’s cause of action against the Bridge Company was predicated solely on the Bridge Company’s alleged breach of a landowner’s general duty to keep his premises in a safe condition for invitees on the premises. See e. g., Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 378 (Tex.Sup.1963). This duty on the part of a landowner requires generally the elimination, or warning to the invitee of hidden conditions which are unreasonably dangerous and which are known to the owner or occupier but are unknown to the invitee. This duty also requires an owner or occupier to make such an inspection of the premises to discover hidden dangers as would be made by a reasonably prudent person in the exercise of ordinary care. City of Beaumont v. Graham, 441 S.W.2d 829, 834 (Tex.Sup.1969); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 378 (Tex.Sup.1963).

In accordance with these general principles, Null alleged the Bridge Company was negligent by: 1) failing to inspect the stairway, 2) failing to warn Null of the dangerous condition of the stairway, and 3) failing to make the stairway safe for Null’s use. This case does not fall within the general rules upon which Null relied.

A landowner is not an absolute insurer of the safety of all invitees on his premises. McElhenny v. Thielepape, 155 Tex. 319, 285 S.W.2d 940, 941 (1956). It is a well-established principle of law that any plaintiff, including an injured invitee, must prove the existence and violation of a legal duty owed to him by the defendant owner. Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627, 631 (Tex.Sup.1976); Coleman v. Hudson Gas & Oil Corp., 455 S.W.2d 701 (Tex.Sup.1970). Such a duty can only be determined by an examination of the facts and circumstances of each case, including an examination of the legal status of the parties involved.

The legal status of the parties here is clearly defined. The Bridge Company was the owner of the premises in question. Plaintiff Null, as an employee of a subcontractor performing work on the premises, was a business invitee. See Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 431 (1950). The record demonstrates that Amigoland, the construction company and Castillo (the moving company) were independent contractors or subcontractors in their relationship to the Bridge Company. When determining whether an independent contractor relationship exists between a contractor and an owner, the test is not the question of actual exercise of control but the retention of the right to exercise control over the contractor’s work. The status of an independent contractor is not destroyed, for instance, by sporadic acts of control. Anchor Casualty Co. v. Hartsfield, 390 S.W.2d 469 (Tex.Sup.1965). The undisputed evidence here is that the Bridge Company did not retain the right to control. It did not exercise control of either the manner in which, or the means by which, Amigoland, the construction company, Star Electric and Null, or Castillo, the moving company, accomplished or managed their respective work on the premises. The respective contractors were directed only to the extent that the Bridge Company expected certain specified end results to occur. See Pitchfork Land & Cattle Co. v. King, 162 Tex. 331, 346 S.W.2d 598 (1961); Great Western Drilling Co. v. Simmons, 157 Tex. 268, 302 S.W.2d 400 (1957); Industrial Indemnity Exchange v. Southard, 138 Tex. 531, 160 S.W.2d 905, 907 (1942).

In this case, the dangerous condition to which Null was subjected was the existence of an inadequately supported stairway. This dangerous condition did not exist at the time the Bridge Company turned over its property to Amigoland or when Star Electric or its employee, Null, entered onto the premises. This condition occurred during the course of the moving operation by subcontractor Castillo when the building was lifted off of its foundation and the stairway was suspended in the air without its former means of support. The condition of the stairs occurred during the course of the actual moving work by the independent subcontractor, Castillo, and arose out of the performance of that work. The Bridge Company had no control over the details of such moving operation and did not attempt to control them. Amigoland assumed the responsibility for having the buildings moved and assumed control and direction of the premises. Null’s accident occurred pri- or to the time Amigoland, and the subcontractors hired to complete the job, had returned control and occupation of the premises to the Bridge Company.

Plaintiff Null contends that the custom inspection station was an important source of revenue for the Bridge Company and that Amigoland’s proposal to move the inspection station in accordance with its plans to connect the existing access road to the bridge with Amigoland’s shopping center would provide additional economic benefits to the Bridge Company. Expected economic benefits is no evidence that the Bridge Company exercised control over the moving process. Null also argues that the Bridge Company retained some control over the moving process because the Bridge Company insisted that the flow of traffic and the governmental operations would remain uninterrupted during the moving process. This is no more than a result expected during the course of the move, and in no way shows that the Bridge Company directed or controlled the moving process any more than the Bridge Company’s desire to have the area kept in a lighted condition during the moving process shows control.

Section 422 of the Restatement of Torts 2d (1965) provides as follows:

“A possessor of land who entrusts to an independent contractor construction, repair, or other work on the land, or on a building or other structure upon it, is subject to the same liability as though he had retained the work in his own hands to others on or outside of the land for physical harm caused to them by the unsafe condition of the structure
a) while the possessor has retained possession of the land during the progress of the work, or
b) after he has resumed possession of the land upon its completion.”

This section applies in favor of any person toward whom the possessor of land is under a duty with respect to the physical condition of the land. Restatement of Torts 2d (1965), comment (a). This section, however, has no application to injuries occurring while the land has been turned over to a contractor and he is in exclusive possession of it. “[W]here the employer moves out of his building and surrenders it to the contractor while it is undergoing construction, demolition, or repair, there is no liability [under this Section].” Comment (a). This section also contemplates that more than one contractor may be involved. See comment (d). Notwithstanding this section, a landowner may still be liable if the work is likely to be dangerous in the absence of special precautions (§ 416) or if the work is inherently dangerous (§ 427). The important thing is, however, that the landowner is not liable merely because of his ownership of the land, possession of which has been surrendered to the contractor. See comment (c) § 422, Restatement of Torts 2d (1965).

Here, the undisputed evidence established that the Bridge Company surrendered its possession and control to Amigoland. Ami-goland assumed the responsibility to move the building. This it did by hiring Castillo to complete the actual move. Amigoland also caused Star Electric to be hired and assumed the entire cost of this project. The accident in question occurred after the Bridge Company vacated the premises, had moved across the street, and prior to the time the moving of the building had been completed.

We, therefore, hold that the Bridge Company had delegated any duty it might have had, to maintain the premises in a safe condition, by relinquishing its possession and control of the Customs building to Ami-goland for Amigoland’s purposes. There is nothing in the record to suggest that the Bridge Company negligently entrusted possession and control to Amigoland nor that the exceptions above mentioned stated in § 416 or § 427 of the Restatement of Torts are applicable. See Brletich v. United States Steel Corporation, 285 A.2d 133 (Pa.Sup.1971). Cf. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex.Civ.App.—Amarillo 1967, writ ref’d n. r. e.).

In addition, the dangerous condition arose out of the work which Amigoland employed Castillo, the moving company, to do, and not out of any condition of the premises where the work was originally to be done. The Bridge Company was under no duty to warn Null of any transitory danger arising during the performance of the various contractors’ work. Perez v. Hernandez, 317 S.W.2d 81 (Tex.Civ.App.—San Antonio 1958, writ ref’d n. r. e.). The trial court, therefore, erred in the first instance in submitting issues to the jury pertaining to the Bridge Company’s liability.

There is another reason to reverse the judgment of the trial court. Null was injured on June 30, 1970, more than three years prior to the effective date of the Texas comparative negligence statute, Tex. Rev.Civ.Stat.Ann. art. 2212a (Supp.1978). The doctrine of contributory negligence, therefore, governs Null’s recovery against the Bridge Company and his recovery must be denied if his negligence was a proximate cause of the occurrence in question. See General Motors Corp. v. Simmons, 558 S.W.2d 855 (Tex.Sup.1977); Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627 (Tex.Sup.1976); Starr v. U. S., 393 F.Supp. 1359, 1365-66 (N.D.Tex.1975). The jury found that Null was negligent in using the stairs after the building was jacked up on railings and that such negligence was a proximate cause of his injuries. The trial court disregarded the jury’s findings on these special issues. In point of error number eight, the Bridge Company contends that the trial court erred in disregarding the jury’s answers to these special issues because there was evidence to support the jury’s findings. We agree.

Null argues that he could not be negligent, as a matter of law, in using the stairway in question because the Bridge Company impliedly represented and warranted that the stairway in question was safe for his use. Null argues that the Bridge Company had a duty to warn him of any unsafe condition known to it or which could have been discovered by reasonable inspection and that he (Null) was entitled to presume that the Bridge Company would comply with this duty and that he (Null) was not required to search for defects. Our holding above precludes sustaining this contention.

While it is true that an invitee is not under the same duty to inspect as an owner or an occupier, the invitee is under a duty to act with reasonable care for his own safety under the circumstances. See Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 434 (1950). The question of the plaintiff’s contributory negligence is generally a question of fact for the jury’s determination. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60, 63-64 (1953); Blanks v. Southland Hotel, Inc., 229 S.W.2d 357, 360 (Tex.Sup.1950); Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 434 (1950); J. Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698, 699 (1940).

Null testified that no one directed him to use the stairway to obtain access to the roof in order to adjust the floodlights and that the choice to use the stairway was his own. Null testified that it would have been feasible to have obtained access to the roof by using a ladder. He also testified that he was aware that the building would be moved and that he had to coordinate his electrical work with the progress of the building movers. Null testified that he used the stairway prior to the time the building and the stairway had been jacked up off the foundation. At that time, the stairs were good and solid, Null said. Null admitted that he was on the job site daily and was generally aware that the condition of the building changed day by day as the moving work progressed. Null admitted that he was concerned for his own safety as well as that of his helper, and that he was interested in anything Castillo, the moving company, might do to weaken the building. It was undisputed that after the building was raised from its foundation, the stairway in question no longer rested upon the ground but was hanging in mid-air. It is further undisputed that Castillo removed the wooden braces which had, in part, supported the stairway. Null testified that he made no visual inspection of the stairs other than merely going up them and that he was not bothered by the fact that the “stairs were sort of hanging there.” He admitted that the stairs seemed to be wobbly and shaky, and that no one else possessed better knowledge of the condition of the stairway than he did since no one else really used them. He further admitted that the stairway was open for his inspection and that nothing was concealed from him as to the true condition of the stairs. Null’s helper, Vano, testified that the stairs were shaky and had, in his opinion, been weakened after the building had been raised.

Contributory negligence has been defined as the failure to use ordinary care to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. Contributory negligence must be determined on a “reasonably prudent person standard” and requires an objective evaluation of a plaintiff’s behavior. Parker v. Highland Park, Inc., 565 S.W.2d 512, 520 (Tex.Sup.1978); Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex.Sup.1975); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 379 (Tex.Sup.1963). There is ample evidence in the record to support the jury’s answer that Null was negligent in using the stairway after the building had been jacked up on railings. The trial court, therefore, erred in disregarding the jury’s answer to this special issue.

We next consider whether there was any evidence to support the jury’s answer that Null’s negligence was the proximate cause of his injuries. Proximate cause embraces two distinct concepts: 1) cause in fact; and 2) foreseeability. Both of these elements must be present. Farley v. M M Cattle Co., 529 S.W.2d 751, 755 (Tex.Sup.1975); Clark v. Waggoner, 452 S.W.2d 437 (Tex.Sup.1970); Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961). The foreseeability of proximate cause is established by proof that the actor is a person of ordinary intelligence and prudence who should have anticipated the danger created by his negligent act. Foreseeability does not require that he anticipate just how the injuries will grow out of that dangerous situation. Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex.Sup.1970); Enloe v. Barfield, 422 S.W.2d 905 (Tex.Sup.1967); Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79 (1956); 303 S.W.2d 359 (Tex.Sup.1957); Ruiz v. Flexonics, 517 S.W.2d 853 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.). The test is not what the wrongdoer believed would occur; it is whether he ought to have reasonably foreseen that the event in question, or some similar event, would occur. Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex.Sup.1970). Null contends that the foreseeability element of proximate cause is lacking because he could not have reasonably foreseen that by merely using the stairway in question in the manner in which he did would produce his injuries. We do not agree.

Null was on the job daily and was in a position to observe the changes in the stairway which resulted from Castillo’s work in preparing the building for its move and after the building had actually been moved. After the building had been lifted from its foundation, the stairway no longer rested on the ground. It was obvious that the wooden supports had been removed. Even if Null did not, for some reason, observe that the wooden supports had been removed, the dangerous condition had to be obvious to Null because the additional support the stairway received from sitting on the ground was not there. The jury reasonably concluded, we believe, that Null should have foreseen the danger inherent in using an outside stairway which was shaky, suspended in the air, and had no visible support other than somehow being attached to the side of the building and to the platform at the head of the stairway. Null should have anticipated the danger of adding additional weight to the stairway in this condition by his using the stairs and by allowing his helper to be on this stairway at the same time he started his descent. There is ample evidence to support the element of proximate cause. The Bridge Company’s point of error eight is sustained.

Null, by way of cross-points, contends that the jury’s answers to these special issues are not supported by sufficient evidence and the answers are against the great weight and preponderance of the evidence. We have carefully considered all of the evidence in the record. Null’s cross-points one through four are overruled. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The judgment of the trial court is hereby REVERSED and judgment is here RENDERED that appellee Null take nothing.

OPINION ON MOTION FOR REHEARING

Appellee Null and appellant Brownsville & Matamoros Bridge Company have each filed a motion for rehearing. Null’s motion for rehearing contains thirty-three assignments of error with no argument and no authority. These assignments of error address contentions which this Court previously considered in its original opinion. The Bridge Company, however, contends that this Court failed to address its contention that it is entitled to reasonable attorney’s fees from Amigoland.

The Bridge Company contends that its cross-action against Amigoland included an action for damages for attorney’s fees and expenses for investigation based upon its contract with Amigoland. This specific contention was apparently addressed under point of error number 11 which, in essence, complains that the trial court erred in: 1) rendering any judgment against the Bridge Company; 2) in refusing to enter any judgment for indemnity and/or contribution in favor of the Bridge Company against Ami-goland, “based on the evidence adduced at trial on the jury findings to special issues numbers 15, 16 and 17.”

The indemnity provision contained in the contract between the Bridge Company and Amigoland provides as follows:

“It is also understood and agreed that Amigoland, Inc. will indemnify Brownsville & Matamoros Bridge Company for any damage to the above described buildings and facilities resulting from the relocation of the same and will indemnify Brownsville & Matamoros Bridge Company and hold it harmless from all liability and loss, including, but not limited to attorney’s fees, court costs and expenses for investigation should any claims be asserted against it arising out of, resulting from or in any manner connected with the proposed relocation of such buildings and facilities and the reconnection to said buildings when moved of all utilities of every character and will commit no lien to arise or be fixed against any of the properties of Brownsville & Matamoros Bridge Company.”

On motion for rehearing, the Bridge Company, in effect, contends that this Court erred by failing to grant the Bridge Company’s prayer for attorney’s fees as presented by its point of error number 11. In support of this contention, the Bridge Company states that the “reasonableness of attorney’s fees was stipulated in the amount $7,500.00 between counsel for Amigoland, Inc., and counsel for (the Bridge Company).”

Amigoland’s position on appeal with regard to the Bridge Company’s prompt action for indemnity was, in essence: 1) that the written contract between the parties was insufficient to indemnify the Bridge Company against the consequences of its own negligence; 2) that the Bridge Company was not entitled to indemnity under common law principles; and 3) that, pursuant to the terms of the parties’ stipulation, the Bridge Company was not entitled to recover attorney’s fees independently of its action for indemnity. These contentions must be considered as they relate to the posture of the case in accordance with our original opinion and the applicable principles of law.

As a general rule, an indemnity agreement will not protect the indemnitee against consequences such as its own negligence unless the obligation is expressed in unequivocable terms. The purpose of this general principle is to prevent unjustice. Goodyear Tire and Rubber Company v. Jefferson Construction Company, 565 S.W.2d 916, 919 (Tex.Sup.1978); Spence & Howe Construction Co. v. Gulf Oil Corp., 365 S.W.2d 631, 634 (Tex.Sup.1963); Fireman’s Fund Ins. Co. v. Commercial Standard Ins. Co., 490 S.W.2d 818 (Tex.Sup.1972); K & S Oil Well Service, Inc. v. Cabot Corp., Inc., 491 S.W.2d 733, 737 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.).

In accordance with our original opinion, the Bridge Company (indemnitee) is not seeking indemnity for the consequences of its own negligence. Therefore, we do not need to determine whether the language of the indemnity provision quoted above comes within this general rule.

In Ohio Oil Company v. Smith, 365 S.W.2d 621, 627 (Tex.Sup.1963), our Supreme Court in considering the provisions of a general indemnity contract stated:

“It is the general rule of the law of contracts that where an unambiguous writing has been entered into between the parties, the courts, in construing that writing will give effect to the intention of the parties as expressed or apparent in the writing. In the usual ease, the instrument alone will be deemed to express the intention of the parties for it is objective, not subjective, intent that controls.”

The intent of the parties must be ascertained from considering all of the provisions of the contract in light of the circumstances surrounding its execution. Joe Adams & Son v. McCann Construction Co., 475 S.W.2d 721, 723 (Tex.Sup.1971). In this case, the parties and the trial court apparently considered the contract containing the provision in question to be unambiguous and its construction to be a question of law for the trial court. The contract was admitted as a “court’s exhibit” to be considered only by the trial judge. The contract is in the record and we consider that it is properly before us for the purpose of construing its provisions.

The initial paragraph granted Ami-goland permission to move the Bridge Company’s buildings and facilities upon enumerated terms and conditions contained in the agreement. In considering the contract as a whole, it is evident that the parties in general intended that Amigoland would be solely responsible for 1) all direct and indirect costs incurred in moving the Bridge Company’s buildings and facilities; and 2) all costs of providing temporary office facilities for the Bridge Company’s tenants. Paragraph 5 relates specifically to the general indemnity provisions. The first clause of paragraph 5 expressly states that Amigo-land will indemnify the Bridge Company for any damages caused to the buildings and facilities resulting from the relocation process. The second clause provides that Amigoland “will indemnify (the Bridge Company) and hold it harmless from all liability and loss . . should any claims be asserted against it arising out of, resulting from or in any manner connected with the proposed relocation of such buildings and facilities . .” Paragraph 5 also specifically provides that “all liability and loss” shall include attorney’s fees and expenses of an investigation. The question before this Court is whether or not the provisions of the contract, particularly those contained in paragraph 5, evidence an intent that attorney’s fees and investigation expenses for a personal injury claim arising out of the relocation of the Bridge Company’s buildings is within the purview of paragraph 5.

We conclude that it does. The contract as a whole evidences an intent that Amigo-land was to control and to assume financial responsibility for the entire relocation process. Paragraph 5 is consistent with this general intent by providing, in effect, that Amigoland would indemnify and hold harmless the Bridge Company as to all liability and loss resulting from “any claims” asserted against the Bridge Company. This language is broad enough to include recovery for investigation expenses and attorney’s fees incurred in defending a personal injury claim asserted against the Bridge Company. See Ohio Oil Company v. Smith, 365 S.W.2d 621, 627-628 (Tex.Sup.1966); United States Fidelity & Guaranty Co. v. Paulk, 15 S.W.2d 100, 105 (Tex.Civ.App.—Texarkana 1929, no writ); Rothschild Co. v. Moore, 166 S.W.2d 744, 745 (Tex.Civ.App.—Beaumont 1942, err. ref’d w. o. m.); 30 Tex.Jur.2d, § 26, Indemnity, (1962).

Brownsville & Matamoros Bridge Company’s motion for rehearing is granted and judgment is here rendered that it have judgment for $7,500.00 as attorney’s fees with interest thereon from September 23, 1977.

The motion for rehearing for appellee Null is overruled.

      . Section 328E of the Restatement of Torts 2d (1965) defines a “possessor of land” as: “a) a person who is in occupation of the land with intent to control it or b) a person who has been in occupation of land with intent to control it . . . or c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).”


author: EVANS, Justice.

text:
    Alicia MADARA, Appellant, v. R. D. MARSHALL, Appellee.
    No. 17252.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 14, 1978.
    Rehearing Denied Jan. 25, 1979.

      Aldrich & Buttrill, Gerald H. Buttrill, Houston, for appellant.
    Vinson & Elkins, Danny L. Van Winkle, Houston, for appellee.
   EVANS, Justice.

This personal injury action is the result of an intersectional collision between two automobiles.

The defendant, driving his automobile in an easterly direction on Westheimer Road, was attempting to turn left onto River Oaks Blvd. The plaintiff was proceeding westerly on Westheimer. The following sketch indicates the scene of the accident.

In response to special issues the jury failed to find the defendant negligent in his speed, the application of his brakes, or his lookout, or that he had failed to yield the right-of-way. The jury found the plaintiff negligent in her speed, the application of brakes, in maintaining a lookout, and that she had failed to yield the right-of-way. It found the occurrence was proximately caused by her negligence in the application of brakes, in maintaining a lookout and in her failure to yield the right-of-way, and that 100% of the negligence causing the accident was attributable to her. The jury failed to find that the plaintiff had been injured and it answered the damage issues with a zero.

The plaintiff contends in her first eight points of error that the jury’s findings regarding the defendant’s negligence are against the weight and preponderance of the evidence and that the evidence established the defendant’s negligence as a matter of law.

The principal contention of the plaintiff is that the defendant violated the statutory duty of a driver intending to make a left turn at a controlled intersection to “yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard . . . ” Article 6701d Section 72 Tex.Rev.Civ.Stat. Ann. Arguing that the defendant had the duty under this statute to determine by a proper lookout whether her vehicle was so close to the intersection as to constitute an immediate hazard, she contends that the defendant’s own testimony shows he made no attempt to estimate her speed and that based upon his own estimate of her distance from the intersection at the time he began to make his turn, it should have been clear to him that he could not make the turn in safety.

The police were not called to the scene of the accident, and the only evidence regarding the accident is the testimony of the plaintiff, the defendant, and a third party, Mrs. Buck, who was called as a witness by the defendant. The plaintiff testified that her vehicle was hit on the driver’s side, indicating that she was already in the intersection when the defendant began his left turn. However, her testimony is in this respect contradicted by testimony of the defendant and of Mrs. Buck to the effect the defendant’s vehicle was almost clear of the intersection when it was struck on the right rear side by the plaintiff’s automobile.

The defendant testified that he had seen the plaintiff’s vehicle “a long time” before the accident occurred. Traffic on Westh-eimer was light at that time and the plaintiff’s vehicle was the only car he observed in the whole block ahead of him. The first time he saw the plaintiffs vehicle it was 150 feet or more from the center of the intersection. When he got to the center of the intersection he looked at her vehicle and saw that she was “plenty far” from him and he didn’t see “any danger whatever” in making the turn. When he began to make his turn, there was no one in front of him and he crossed the center line traveling at about five or six miles per hour. He pressed down on the gas pedal, picking up speed, and he had practically cleared her lane when the right rear of his automobile was struck by her vehicle.

Q And she was coming through the intersection this way and you all kind of met in the middle, didn’t you?
A Well, I had practically cleared her lane. I don’t think that my car was- — I may have cleared when she hit me. I know I wasn’t more than six inches back in her lane when she hit the back of my car.
Q Now, didn’t you testify earlier that once you started to make that turn that you never looked again at her vehicle?
A I didn’t turn back and watch her, because I felt sure that I had a safe turn and I didn’t see any use in turning around and watching her.

The third party witness, Mrs. Buck, testified that she was driving east on Westheimer, following the defendant’s vehicle, when she saw him begin to make the left turn. She indicated that it was clear from the defendant’s actions that he intended to turn left onto River Oaks Blvd. and that there was sufficient distance between his vehicle and the plaintiff for the turn to be made in safety. She estimated that the plaintiff’s vehicle was traveling at a speed of around 35 miles per hour and that at the time the defendant began his left turn, the plaintiff’s vehicle was about seven car lengths from the center of the intersection.

The plaintiff does not suggest how the speed of the defendant’s vehicle could have contributed to the accident. Neither does she explain how any braking application by the defendant could have avoided the collision. Thus, the questions for determination are whether the failure of the jury to find that the defendant was negligent in maintaining a proper lookout and in failing to yield the right-of-way are against the great weight and preponderance of the evidence and whether such negligence was shown as a matter of law.

In making a left turn at an intersection, it is the duty of a driver to look for vehicles approaching from the opposite direction and to exercise due care in observing the speed and proximity of approaching vehicles so that he may determine whether such vehicles constitute an immediate hazard to his course of action. Day v. McFarland, 474 S.W.2d 946, 951 (Tex.Civ.App.—Tyler 1971, writ ref’d. n. r. e.). However, if the driver intending to make a left turn misjudges the speed of the approaching vehicle or its distance from the intersection, this does not necessarily establish a want of due care on his part. Boaz v. Whites Auto Stores, 141 Tex. 366, 172 S.W.2d 481, 483 (1943). Thus, in the case at bar it was the plaintiff’s burden to prove the defendant’s negligence upon the common law standard of whether he acted as a reasonably prudent person under the circumstances existing at the time of the occurrence. Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956).

Based upon the circumstances presented by the evidence the jury could have concluded that a reasonably prudent person exercising ordinary care would have decided, as did the defendant, that he could clear the intersection without danger of colliding with the plaintiff’s approaching vehicle. The jury’s findings in this respect are not against the great weight and preponderance of the evidence, and the evidence does not establish the defendant’s negligence as a matter of law.

In points of error nine through twenty, the plaintiff challenges the legal and factual sufficiency of the evidence to support the jury’s findings that she was negligent in the application of her brakes, in her lookout and that she failed to yield the right-of-way, and that such acts of negligence proximately caused the accident. The plaintiff argues that she was not required to anticipate the defendant’s negligence and that before it could be found that her own negligence was a proximate cause of the collision, it must have been shown by the evidence that a proper lookout would have alerted her to the danger and that the collision would not have occurred except for her failure to maintain a proper lookout and to take evasive action.

According to the plaintiff’s testimony she estimated the defendant’s vehicle to be two to three car lengths from her vehicle when he began making the left turn. She “figured” that he was stopped to make a left turn, but she didn’t see him give any type of signal before he turned. She testified that she applied her brakes at that time, as hard as she could, and that her tires squealed and left skid marks. She said she also swerved her car to the left to avoid the accident. She contends that under the defendant’s own testimony she could not have determined that he was going to make a left turn until there was a distance of 125 feet or less between the two vehicles, and that by mathematical calculation there could not have been sufficient time for her to have stopped at the speed she was driving.

Contrary to the plaintiff’s version of the accident, Mrs. Buck testified that she had not observed any braking of the plaintiff’s vehicle nor any deviation in its course. Neither had she heard any squealing of tires. She said the plaintiff’s vehicle came straight to the point of impact with the defendant’s vehicle and that she observed nothing to indicate that the plaintiff had applied her brakes.

Where the proximity of the approaching vehicle is such that it gives the appearance that the left turn may be made in safety, the motorist making a left turn has the right to proceed through the intersection. Day v. McFarland, supra. If the motorist making the left turn has misjudged the speed or distance of the approaching vehicle, the approaching motorist cannot disregard his plight and must exercise ordinary care to avoid a collision. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); McElroy v. Wagley, 437 S.W.2d 5 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n. r. e.). Thus, even though the approaching motorist may have the right-of-way, he must take such evasive action as may be reasonably appropriate to avoid the collision if the circumstances are such as to sufficiently alert him to the danger. Thorton v. Campise, 459 S.W.2d 455, (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n. r. e.); Goates v. Fortune Lincoln Mercury, 446 S.W.2d 913, 916 (Tex.Civ.App.—El Paso 1969, writ ref’d n. r. e.). The right-of-way of the motorist approaching the intersection from the opposite direction is not an absolute right and the approaching motorist must exercise due care for his own safety and the safety of others. Cheramie v. Scott, 324 S.W.2d 87 (Tex.Civ.App.—Amarillo 1959, writ ref’d. n. r. e.).

In the ease at bar there was evidence which, if believed by the jury, tended to show that the plaintiff was alerted to the fact that the defendant proposed to make a left turn at the intersection and that there then remained sufficient time for her to have taken evasive action which would have avoided the collision. Thus, the jury could have concluded that the plaintiff was negligent in failing to reduce her speed and in failing to apply her brakes and that the accident would not have occurred if she had used such means of avoiding the collision. The evidence is legally and factually sufficient to support the jury’s findings in these respects and such findings are not against the great weight and preponderance of the evidence. For the same reasons the jury’s finding attributing 100% of the negligence to the plaintiff has sufficient evidentiary support, and plaintiff’s points of error twenty-one through twenty-three are overruled.

In her remaining three points of error the plaintiff contends that the jury’s failure to find that she sustained any injury and to award any amount of damages are against the great weight and preponderance of the evidence and that such injury and damage have been shown a matter of law. In view of this court’s disposition of the first twenty-three points of error, it is unnecessary to consider these points.

The trial court’s judgment is affirmed.

ON MOTION FOR REHEARING

In her motion for rehearing the plaintiff contends that it was not her burden to prove the defendant’s negligence under the common law or prudent man standard unless the defendant first presented some evidence of a permissible excuse for failing to yield the right of way to her. She relies upon Impson v. Structural Metals, Inc., 487 S.W.2d 694 (Tex.1972); Southern Pacific Company v. Castro, 493 S.W.2d 491 (Tex.1973); and L. M. B. Corporation v. V. Gurecky, 501 S.W.2d 300 (Tex.1973), arguing that under such authorities the defendant’s negligence must be deemed to have been established as a matter of law since he did not offer evidence of a permissible excuse within the limited range set forth in Impson, supra.

The cases relied upon by the plaintiff apply only to those situations where a statutory violation is shown by the evidence. The duty imposed upon a driver intending to make a left turn at an intersection is not absolute, and it is not, ipso facto, a violation of the statute to cross the center line of the roadway at an intersection. If the driver exercises due care in maintaining a lookout for vehicles approaching from the opposite direction and in observing the speed and proximity of approaching vehicles in such manner that he may determine whether the approaching vehicles constitute an immediate hazard to his course of action, the trier of fact is entitled to find that he acted as a reasonably prudent person under existing circumstances even though he may have misjudged the speed of the approaching vehicle or its distance from the intersection. Thus the question of whether a driver has violated the statute in question must be determined from the facts of the particular case. See Impson v. Structural Metals, Inc., supra, at page 695, footnote 1.

The plaintiff’s motion for rehearing is overruled.