*1 416 both, Nonetheless,
or and he defaults in of payment he has subsequently been in- either, imprisonment for term County carcerated Criminal Court default, combined when with the term of direct violation of the District Court’s valid imprisonment already assessed, may Then, not order. violation, the face of this imprison- exceed the maximum term of the District Court has refused the further ment authorized for offense petitioner relief which the was entitled. defendant sentenced.” From this it is clear that in turning this for original Court habeas corpus
The concedes that relief petitioner State petitioner is seeking not for a avoid period longer has been confined than available relief; local indeed has sought punishment diligently the maximum possible for the relief. Compare parte Ex possession dangerous Lynn, offense of su- drugs. petitioner We pra. conclude that 43.03(c) prop- In such a mandate has case the of Art. erly original invoked this Court’s petitioner unequivocal: may is The habeas jurisdiction. corpus subjected to further confinement.2 Accordingly, the application for Clearly, petitioner is writ entitled to relief corpus prayed habeas and relief only he seeks. for are remaining question is granted. Petitioner is ordered discharged origi- whether this Court should exercise its all further jurisdiction incarceration in nal Cause No. corpus habeas in order to CCr-70-1419-b. grant this relief. It is so ordered. questioned
It cannot be Appeals power Court of Criminal has the corpus
issue originally writs habeas filed V,
in this Court. Art. Sec. Vernon’s
Ann.Tex.Const.; 11.05, Art. Vernon’s Ann.
C.C.P.; Lynn, parte Tex.App. Ex 120
(1885); Cvengros, parte Ex S.W.2d But
(Tex.Cr.App.1964). it is well estab exercised, power rarely
lished that only in the discretion of the Ex Court. COMPANY, BRISTOL-MYERS Lynn, Young, Ex parte supra; Parte Appellant, (Tex.Cr.App.1967), S.W.2d cases there cited. al., Appellees. Ramon et GONZALES though Young, Ex parte supra, Even No. 1016. conviction, lan felony involved it contains to this guage applicable case. There this Texas, Appeals Court Civil Court stated: Corpus Christi. applicant to a “Where entitled 30, 1976. Dec. hearing petition his and is right, denied such the Court Criminal Feb. Rehearing Denied 1977. Appeals petition orig- hear the may Motions for Rehearing Second Denied inal proceeding.” Feb. 28 and March 1977. parte Fitzpatrick, also Ex 167 Tex.Cr.R. See We believe the just case before us is such a Petition- case: unlawfully
er has been He incarcerated. petitioned District Court for habeas relief,
corpus granted and has been relief. Scott, significant petitioner’s origi- parte It is not Article 43.03. See Ex 2. parte Tate, (Tex.Cr.App.1971); nal incarceration occurred be- Ex conviction and 1971). (Tex.Cr.App. fore date of the effective the amendment *5 ber January 1970and 1971. liability Upjohn predi- Bristol and was claimed to be provide adequate cated on their failure to warnings and instructions for the safe use drugs to physician of their and for misrepresentation regard affirmative of such drugs to the use under theories of products and strict negligence liability [Sec- 402A 402B of tions the Restatement (Second) of and on for Dr. Gonzalez Torts] in his negligence plaintiff treatment of drugs. trial, Prior with the plaintiff his compromised against claims Gonza- $100,000.00. lez for He then non-suited Upjohn. both Dr. Gonzalez and plaintiffs Bristol denied claims and filed alleging a cross-claim Dr. Gonzalez negligence as defenses and misuse of its drug treating plaintiff, Kantrex and re- questing indemnity or from contribution Garwood, Austin, L. Finley L. William turn, physician. filed a Edmonds, Donnell, Corpus Meredith & complaint against third-party Christi, appellant. for misrepresentation Upjohn for inade- Maddin, Maddin, Allison, quate warnings F. as to Harry drugs, White the use of its Brin, Edwards, requesting indemnity William & R. contribution manufacturers, Christi, appellees. prior but to trial he Upjohn. non-suited OPINION plaintiff, posture, Dr. Gonzalez *6 (the parties and Bristol three this before YOUNG, Justice. Court) to trial went before a that case, products liability this Bristol- In special 1) found in answer issues: that in below, Company, appeals Myers defendant (Physicians’ 1970 PDR Reference) the Desk $800,000judgment against from an and give Bristol failed to adequate Dr. Gonzalez Gonzales, of Ramon plaintiff in favor be- warnings (as or instructions in the defined low, plaintiff’s result- allegedly for deafness court) charge of the with respect to the use inadequacies claimed the warn- ing from in Kantrex; 2) that such of failure was a by concerning ings given pre- Bristol its deafness; plaintiff’s of producing 3) cause drug judgment “Kantrex”. scription injection (ka- that the statement “Kantrex any Bristol or contri- indemnity denied also injection) namycin sulfate in concentrations against prescribing treating the and bution in percent of 0.25 abscess cavities” reason- Gonzalez, Dr. cross-de- Rufino H. physician, ably implied to Dr. Gonzalez that he could below. fendant drug in the such for the use concentration originally sought recovery plaintiff suit irrigation This hear- without fear of Bristol, 4) the manufacturer of Kan- that aghinst ing damage; Dr. Gonzalez relied on statement; sulfate), 5) Com- (kanamycin Upjohn trex that was statement (neo- false; 6) manufacturer pany, Mycifradin of that reliance on that false state- Gonzalez, .total, sulfate), for producing and Dr. mycin plaintiff’s ment was a cause of irreversible, deafness; brought 7) bilateral that Dr. deafness Gonzalez to use failed drugs (as treatment with for a charge those defined in of ordinary about care court) treating plaintiff; 8) while in Medical hip infection Memorial in Christi, Texas, in Corpus proximate Decem- plaintiff’s Center in failure was cause of deafness; The literature 9) plaintiffs damages which Dr. and Gonzalez con- regarding sulted the use of $800,000.00. Kantrex at the hearing of were for loss of time treatment was Bristol’s insert for court, having over- previously The trial injection Kantrex in the 1970 (Physi- PDR motions for directed verdict ruled Bristol’s Reference). cians’ Desk evidence, of all thereafter at the close event, any time Ramon was judgment on the verdict in favor of entered off the drugs 5th, taken two on January and in the plaintiff amount damage had been done to hearing. his By $800,000.00 mo- and overruled Bristol’s February, totally he was permanently and judgment tion for N.O.V. and alternative deaf. indemnity on the for motions verdict Appellant brought from Dr. Gonzalez. Bristol’s contribution forward 38 has, points however, error. It motion for trial amended new was likewise summa points categories into purposes rized appeals judg- overruled. Bristol from that argument. We will use appellant’s form ment. at, in generally, considering its contentions. summary background A fair facts Among appellant’s points of are error sev shows these events and circumstances. On legal insufficiency points (“no eral evi 22, 1970, appellee November Ramon Gon- law”). and “as a matter of dence” With zales, old, years then 25 admitted point, shall each such we view the evidence Center, Christi, Memorial Medical light in most favorable in support Texas, Gonzalez, by Dr. an orthopedist. jury findings and only consider the evidence complaining pain Ramon had been in his support and inferences which the findings tests, and knee. After some hip left reject the and evidence and inferences con diagnosed Gonzalez infection Ramon’s trary findings. Miller v. Riata Cad 20th, Dr. start- hip. On December Gonzalez Company, (Tex.Sup. illac on Kantrex tablets. Decem- ed Ramon On 1975). considering the appellant’s factu 22nd, changed ber administration (“insuffi insufficiency points al of error injection, be- Kantrex intramuscular “against great cient evidence” and 5, 1971, 22nd and January tween December weight preponderance evi grams 20.5 of Kantrex was ad- a total of dence”), we shall examine the whole record per- way. ministered supports to determine whether surgery hip on formed on Ramon’s infected Estate, jury findings. King’s In re Beginning day 23rd. on that December 662, 244 Tex. S.W.2d 660 4,1971, continuing to January wound category (points first 4), In its hip subjected Ramon’s continuous Bristol contends that recovery is sus- (or irrigation washing) alternating so- 402A, under tainable Section Restatement Upjohn’s lutions of Bristol’s Kantrex and *7 (Second) of Torts because Dr. Gonzalezmis- neomycin sulfate. complied used Kantrex and because Bristol Drug Federal and with Food Administra- Upjohn’s neo- Both Bristol’s Kantrex requirements; the warning therefore tion (having mycin were known to be “ototoxic” adequate as a was matter of law. Primari- deafness). potential to cause The mechani- jury attacks ly, findings Bristol the favor- drug hearing in which way cal each affects special (inade- to Ramon in able issues 1 nerve) to the is the (damage eighth cranial cause). quate warning) (producing is not the some disputed portion same. It neomycin the the Kantrex and used in defense, For be a sup misuse to the was absorbed the blood and irrigation must show that the plier use which caused oto- cumulative effect all those injury reasonably was not the foreseeable. blood, drugs in the the unknown toxic Grant, (Tex.Civ. Co. v. 534 S.W.2d Heil neomycin of absorbed Kantrex and amount Tyler App., n.r.e.). writ ref’d And if Kantrex, injected resulted in Ra- plus injury resulting foreseeable mis adequate one product which an use of mon’s deafness. Act product purports to deal with concerning property rights. the use of warning misuse is no de- it a crime likely prevent, such It makes to market such a Corporation v. Casualty product complying Bituminous without with the Act. fense. Co., Manufacturing comply Failure to and Decker with the Act would be Black However, writ negligence per Dallas se. mere com- S.W.2d law, does not as n.r.e.). pliance a matter of in all ref’d cases, party mean is free from PDR, appellant the 1970 Bris In negligence. . . . Whether there is tol stated: depends on the negligence facts of each Kan- Routes of Administration: “Other are of the view that case. We stat- injection ... in concentra- trex regulations by the agencies utes (2.5 per mg./ml.) 0.25 cent tions of merely set minimum Compli- standards. satisfactorily irrigating as an been used ance with standards is evidence on cavities, pleural space, in abscess solution negligence.” the issue of ventricular cavities.” peritoneal Muncy Magnolia Company, See v. Chemical supplied.) (Emphasis 15 (Tex.Civ.App., Amarillo further clarification about what Without n.r.e.). ref’d Bristol’s contention that irrigation appropriate, was type warning adequate its as a matter of infer was entitled to that Bristol left complied with F.D.A. re- law because open treating physician for a to use door quirements is overruled. irrigant. Kantrex as a continuous The tes- Continuing appellant’s catego- about first Jones, Bristol, timony of Dr. a witness for we ry, will discuss the assertions of no that Bristol intended Kantrex to showed be great evidence and weight and only washing surgical as a one-time used preponderance of the relating wounds, as a irrigation. continuous findings special (inadequate issues 1 foregoing demonstrates a reasonable warning) (producing cause). and 2 irrigation that continuous inference reasonably foreseeable be- Kantrex product, manufacturer of a A of the statement cause knowledge to his actual or constructive in warning and that was not 1970 PDR danger potential volves users has a against using Kantrex as a con- adequate give adequate an warning of such dan irrigant. Bristol’s misuse as a mat- tinuous Laboratories, ger. Winthrop v. Crocker Di ter of law contention is without merit. Sterling Inc., Drug, vision 514 S.W.2d (Tex.Sup.1974); Muncy Magnolia We now consider Bristol’s contention Company, supra. prod Chemical Where a warning in the 1970 PDR was ade that its highly contains toxic or dangerous uct in as a matter of law because it com quate gredients which are not obvious typi to the requirements. FDA In that re plied with user, is a duty part cal there on the reasoning gard, applicable we deem give adequate Minimax, warning manufacturer Rumsey Freeway Manor dangers. Muncy Magnolia of such (Tex.Civ.App., Houston [1st Company, supra, adequate writ). Chemical warn Rumsey, no the de Dist.] ing has been defined as follows: liability because he had fendant claimed respective with the and Fed complied State (1) “. . it must be in such form approved Acts and his label had been eral reasonably expected it could governmental agencies. appropriate reasonably pru- catch the attention of the *8 Appeals there said: The Court of Civil use; in the circumstances dent man of its (2) warning the nor the Fed- the content of the must be of “. . . Neither State change comprehensible to the com- nature as to be purports Act to such a to eral merely average convey warn. It autho- the user and to a fair duty mon law marketing specified of economic of the nature and extent of the rizes the indication regulations danger reasonably pru- and the to the mind of a poisons if the statutes . complied person. question with. Neither . . of promulgated are dent thereafter, given warning legally or not a have emphasis whether added upon based depends Jones, upon language sufficient statement of Dr. Associate Di- impression Bristol, and the that such lan- rector used of Medical Services for that guage is to make calculated information Bristol now has it had as product. average user of the early mind as 1967. Implicit duty in the to warn is the Isensee, Dr. expert Grollman and Dr. wit- intensity of degree warn with that appellee, nesses for testified that it was cause a reasonable man to exercise to use improper Kantrex where other less . caution commensurate with are drugs toxic available. Each witness potential danger. ... A clear that further testified this information was cautionary setting statement forth the not contained within the 1970 PDR. dangers exact nature of the involved Standing proof of between a failure to necessary fully protect would be recovery warn and ultimate the necessity supplied.) (Emphasis . . .” seller. proof of of causation between failure to Casualty Corporation Bituminous
See
injury. Menking
warn and the
v. Bishman
Manufacturing, supra.
and Decker
Black
Manufacturing Company,
The form Bristol’s
was
writ).
no
questioned
Special
when evidence was introduced
issue 2
the charge
of
addresses this
showing
Supplement D
that
of
1970 issue
found that
there was
thereafter,
PDR,
warnings
and all
were
causation. We find that
jury’s
determi-
warnings.
switched to boxed
In the same
nation
issue is adequately supported
new
light,
emphasis provided by
by
there is
evidence. Dr.
Grollman
Dr. Isensee
incorporation
warnings
of all the
Bristol’s
testified that use of Kantrex when other
warning
in the box
at the
drugs
and side effects
less toxic
were
totally
available was
D,
in
Supplement
warnings
all
wrong
necessary
first
and this information was
thereafter,
intertwining
rather than
them if
safely.
Kantrex was to
used
Gon-
throughout
body
done
the entire
as was
in
zalez
that if he
testified
had known that use
totally wrong
the 1970 PDR.
of Kantrex was
when other
dangerous
available,
less
antibiotics were
he
Challenges
adequacy
of the 1970
would have
drug.
used
different
by
were
PDR’s content
raised
introduction
pleading
drug applica-
and new
of Bristol’s
further
he de-
testified that
both
these in-
tion on tuberculosis.
cided to use Kantrex based
the follow-
stances,
ing
Bristol stated
audiometric
statement contained in the 1970 PDR.
testing
plead-
mandatory
was
in the
Injection
“Kantrex
...
in concen-
testing
ings,
kidney
Bristol stated that
per
trations of 0.25
cent
.
. has
mandatory. Nowhere in
1970 PDR
used satisfactorily
been
as an irrigating
is the
Kantrex insert
need for either of
cavities,
solution in
plueral space,
abscess
tests
in
terms.
mandatory
these
stated
peritoneal and ventricular cavities.”
also recommended Kantrex for This
statement was bolstered
the testi-
in
with-
all
irrigant
mony
physician
use as an
abscess wounds
witnesses who
what
specifying
type
irrigation
irrigation encompassed
out
stated that
several
proper.
including
The 1971PDR stated that
deter- methods
the type
administered
mining
plaintiff.
the total dose all routes of adminis- Dr. Gonzalez to the
Dr. Gonzalez
account,
taken into
where-
although
should be
said that
tration
knew the ototoxic
comparable propensities
contains no
injected
as the
PDR
of Kantrex when
in-
comparison with
tramuscularly,
Further
he did
know
statement.
PDR
that the 1970 PDR con- propensities
shows
when Kantrex was
as an
used
requiring stoppage
irrigant.
absorption
He
tained
instructions
also believed
therapy
irrigation
after the first dose
check was minimal from
and that he
drug
damage.
kidney
necessary
All references to
did not know that was
to take
PDR,
warnings
placed
determining
the 1971
and those
into account such
amounts
*9
(Tex.Sup.1972).
Dr. Gonzalez was of the
A
ap
reactions.
Federal Court
ototoxic
the use of Kantrex without
opinion
plying
that
Texas Law stated that where a man
unreasonably danger-
product
this information
states that a
can
ufacturer
be used
that if he
known these
and he said
had
justi
ous
in a certain manner then the user is
treating plaintiff, he would
when
interpreting
facts
product
fied in
can be
Kan-
stopped
decreased or
the use of
have
safely in that manner.
used
Franks v. Na
agreement
was in
when
Dr. Isensee
Products,
trex.
Dairy
F.Supp.
tional
the lack
testified that
of information
he
(W.D.Tex.1968),affirmed,
(5th
ty to discontinue Isensee, plaintiff’s witness and head of Me damage. to test for He injection kidney staff, proba morial Medical Center’s of Kantrex without this infor- felt that use misrepresentation. issue of tive on the He pa- created unreasonable risk to the mation understood the specifically statement to be fact, and that if he had known this tient representation an affirmative that it was necessary have run the tests. proper to use Kantrex as a continuous irri- summation, appears clear to this gant. He further testified to the extent special that the answers to issues 1 Court PDR that the 1970 does not mean that a charge are supported by legally and of the physician can use Kantrex satis prescribing factually sufficient Appel- evidence. factorily irrigation in continuous it was de points first four of error are over- lant’s fective, misleading and false. Dr. Gonzalez ruled. testified his decisionto use Kantrex as irrigant a continuous was partially based category through (points In its second upon the recommendation in the 1970PDR. argues 10), recovery Bristol is not sus- 402B, under tainable Section Restatement Appellant contends that the statement (Second) in respect of Torts to the PDR producing not a cause because it must be irrigation. about Bris- Basically, statement into account with taken the whole of the complains that the evidence supporting tol PDR and that the statement is true 3, 4, jury findings special issues 5 and Kantrex has been because used satisfactori- legally and factually 6 was insufficient. irrigant post-surgical one time ly as This, however, is not the washes. issue. For Ramon to recover under this misrepresentation statement was a The Restatement, Bristol’s state section justifiably relied injection ment in the PDR that “Kantrex it was a producing and whether cause re- (kanamycin injection) sulfact in concentra to the use of Kantrex lates as a continuous (2.5 percent mg./ml.) has been tions 0.25 irrigant. satisfactorily irrigating used as an solution cavities,” a misrepresen testimony in abscess must be of Dr. Jones and Dr. Lane a material fact which the tation of indicated that did not know whether justifiably injury. relied1 to his plaintiff measurably Kantrex could absorbed in Laboratories, Winthrop Division quantities Crocker v. so as to create a risk ototoxic Inc., Drug, Sterling supra; Technical when used in poisoning irriga- continuous Jacobs, Jones, however, Company v. Chemical S.W.2d tion. on cross exami- involved, explain 1. . We believe that it was unreason- and the the risks suppose drug Co., that a manufacturer must able his.” v. Parke-Davis Gravis & 502 S.W.2d give go beyond physician actual warn- ings patient. physician to the Once the n.r.e.). ref’d warned, use, drugs the choice of which been *10 426 significant amounts of error which appeal.
nation stated form basis for Rule irrigation. could be absorbed Kantrex 320 that a provides motion “shall specify and Academy of Sciences Na- ground founded, The National each it is and no 1969 Council in criticized tional Research ground specified not shall be considered.” empha- to statement because it failed this requires assignments Rule 321 re- toxicity absorption and potential size fer to the action of court complained of “in suggested concentration for ir- because the way objection as that the can Bristol, excessive. neverthe- rigation was clearly identified and by understood less, to state that Kantrex could continued 322 court.” Rule directs that “Grounds of irrigant an in fact it as when meant be used objection general couched in terms wash. post-surgical for one time by shall not be considered the court.” Rule that “A provides ground 374 of error that he not testified was un- distinctly set forth in the qualities the ototoxic of Kantrex motion new aware of trial, He where a irrigant. as an also testified in cases motion for new when used trial propensities required ototoxic of Kantrex shall be as that if the considered waived.” irrigant were unknown that use of 1 Although as an Rule states that rules are to be irrigant a continuous involved construction, 320, Kantrex as given 321, a liberal Rules to danger patient; an unreasonable adopted 322 and 374 were nevertheless to facts, had that if he known these purpose. serve a useful There must be an irrigant used Kantrex as or not have compliance substantial with these rules if a reduced the concentration. Dr. would have litigant points is to have his error con- testimony by agree- Isensee confirmed appellate by sidered court. use of Kantrex without infor- ing that the absorption unreasonably 11th, mation on 12th, 13th, 14th, Appellant’s dangerous. 15th, 17th 36th points complain of error charge. Appellee of errors in the asserts and the principles In view these facts assignments these of error are too they apply, out which we find that set to general to warrant consideration questions court’s justified trial agree. Court. We jury. 6 to the also through 3 We conclude analysis of from an the evidence that the appellant’s complaints Each of is ad- jury’s questions sup- to these were answers dressed either to the form of an issue sub- ported by legally factually sufficient preface mitted or definition to a used Appellant’s points of error evidence. 5 objection submitted issue. The to these are through 10 overruled. paragraphs submissions are contained in 59, 60, 52, 57, 53 respectively, Next, group we appel consider as appellant’s motion for new trial. Each points complaining of error of errors lant’s paragraph general is couched in the same charge. court’s In that regard, in the trial terms set paragraphs and 57 out as is required where a motion for new trial follows: appellate courts can perfect appeal, con only assign raised complaints
sider
“52. The trial court
overruling
erred in
motion for new
ments of errors within the
objections
defendant’s
defini-
Foster,
Tex.
Wagner
trial.
term ‘adequate warning
tion of the
or
Smith,
(1960);
Collins
Charge
instructions’
used
of the
Tex.
175 S.W.2d
Unless
Court.”
fundamental,
appellant waives
error is
n
n
n
n :
n
¾5
complain
any ruling
right
Farm Mutual
assigned as error. State
court
in overruling
“57. The trial
erred
Company v. Cowley,
Question
Insurance
objections
Automobile
the defendant’s
(Tex.Sup.1971).
Charge
468 S.W.2d
of the Court.”
One
320, 321,
paragraphs
The other above mentioned
T.R.
Rules
quoted
only
C.P.,
assignments
vary
paragraphs
the form of the
from the
as to
govern
objected
each
ordinary
to.
owed the
to exercise
question
definition
*11
assignments
distinctly
of error
of the
safety
injured party.
care
for
None
out to the trial court
matter
Consequent-
Both violated these duties.
pointed
assignments
error. The
of error
ly,
guilty
as
of
quality
claimed
each was
of
same
procedure
civil
comply with rules of
injured
not
negligence
do
toward the
workman.
points of error are waived.
appellant’s
pari
and
in
with each
they
Thus
stand
delicto
Foster, supra; Weingarten,
v.
J.
Wagner
must,
statute,
under the
share
other and
Moore,
(Tex.Sup.
452
v.
449 S.W.2d
Inc.
their
equally
arising
the burdens
from
Sales,
Hardy
Inc.,
v.
511
C.P.I.
1970);
wrongful conduct.”
(Tex.Civ.App.,
89
Houston
S.W.2d
[1st
analogous
at
This
is
to the case
statement
1974, writ);
Gregory,
no
Carr v.
472
Dist.]
independently produced
bar. There is
fault
(Tex.Civ.App., Corpus
819
Christi
by both Bristol and
Gonzalez with both
writ);
1971,
South Texas
no
Natural Gas
cause
concurring
injuries.
Ramon’s
Guerra,
Gathering Company v.
469 S.W.2d
jury found
ac
The
Dr. Gonzalez’
(Tex.Civ.App.,
899
negligent
proximate
and a
tions
be
cause
points
12, 13,
e.). Appellant’s
n. r.
ref’d
injuries.
findings are
of Ramon’s
These
14, 15,
36 are overruled.
17 and
clearly supported by
evidence. Dr.
complains
18
Appellant’s point of error
of
intramuscularly
administered
an
Gonzalez
enter
trial court’s failure
order
dosage.
amount well over
recommended
indemnity to
granting
stopped
when there
therapy
The
was
alternative, appellant
In the
Gonzalez.
or
response
days
no
within five
clinical
granted
have been
that
should
claims
appearance
(ring
after the first
of tinnitus
as
from Dr.
asserted
contribution
ing
ears).
signs
in
All
kidney
dam
19. We
the contribution
its
sustain
in
age
Neomycin
ignored.
were
was used in
indemnity point.
but overrule the
point,
concentrations which exceeded the recom
general
rule of contribution
The
dosage
irrigation.
mended
evi
The
in
persons
where two or more
concur
dence further established that these failures
single
injury, then
a
indivisible
producing
proximate
inju
were a
cause of Ramon’s
severally
are
persons
jointly and
liable
ries.
although
duty,
design,
no common
common
action exists. Austin
however,
concerted
Road Co.
is,
There
law in
no case
216
Pope,
v.
Tex.
S.W.2d 563
that has
brought
Texas
been
atten
to our
Austin Drive-In
(1949); South
Theatre v.
specifically dealing
right
tion
Thomison, 421
S.W.2d 933
liability
where
contribution
is based
writ ref’d n. r.
Austin
liability under
and
strict
Sections 402A
(Second)
of the Restatement
402B
of Torts
Co.,
In Austin Road
we find the follow-
party
third
negligent.
where a
and
found
ing:
so,
believe that
right
we
there is a
Even
jury findings
“The evidence and
herein
such a
situation based
contribution
convict
clearly
each of the tortfeasors of
analysis.
following
joined
wrongful conduct which
con-
art. 2212
bringing
about
states
injury.
curred
Tex.Rev.Civ.Stat.Ann.
right of
party
merely
among
did
is a
contribution
Each
more than
there
create
where
cause of action
which the other negli-
joint
condition under
tortfeasors
(b)
(d)
Comments
“tort”.
negligent
acted. The
gently
conduct of
is based
(Second)
of Torts
Section
proximate
was a
cause of
colli-
the Restatement
each
indicate that
402B, respectively,
injury
and the
inflicted was
their
402A and
sion
(strict liability) is a
based
so
of action
joint and concerted action.
act of
cause
Ford
Motor
in tort.
proximate
cause.
of action
neither
the sole
cause
& Smith Ford
Russeil
might
Company
have
. Either one or both
(Tex.Civ.
wrong.
Company,
Each
prevented
Neither did.
1971, writ),
care,
App.,
Dist.]
the other the same due
Houston
owed
[14th
Inc.,
“.
generally
Hydraulics,
a1,
said:
.A tort
Hiab
the Court
et
356 F.Supp.
theory wrong independent
(D.C.Md.Pa.1973).
cases,
embraces
In these
contract,
or as
respective
a breach
courts resolved this same issue in
contract,
law,
distinguished
has im-
granting
favor of
contribution. See Cham
Torts,
1, p.
55 Tex.Jur.2d
Sec.
posed.
Company,
See
berlain Carborundum
485 F.2d
Therefore,
(1964).”
(3rd
1973);
402A
Sections
Cir.
Automobile Club Insur
Sales,
should
included
Article 2212.
ance
Company
Toyota
402B
Motor
(Mont.1975);
P.2d 1337
Compa
Ford Motor
adopted
402A and 402B
In that Texas
ny
Poeschl, Inc.,
v. Robert J.
Cal.App.3d
*12
(Second),
of
the Restatement
Torts
of
694, 98
Cal.Rptr.
(1972); Northwestern
plaintiff in Texas is now
injured
relieved of
Stromme,
Mutual Insurance Co. v.
4 Wash.
proving
of
that a
the burden
manufacturer
App.
(1971);
product was
hold, therefore,
We
that contribu
hold, also,
To
that these sections de-
ty.
tion under the statute
proper
and we
of a
prive
right
a manufacturer
seller
judgment
reform the
of the trial court to
from a negligent
party,
contribution
third
hold Dr.
liable to Bristol for one-
contributing
plaintiff’s injury,
to the
Gulf,
judgment.
half of the amount of the
the sound
go beyond
policy considerations
Bliss,
Colorado &
Fe
Co.
Railway
Santa
upon which these sections are founded.
supra;
Pope,
Austin Road Co.
supra.
support
position,
of this
we look
the The evidence
findings clearly
con
of Ford Motor Company
cases
v. Russell
vict each of the
wrongful
&
tortfeasors of
Company,
joined
Ford
supra
Smith
and Walters v.
conduct
and concurred in
which
Texaco,
injuries. For the ments on the
bringing
authority
about Ramon’s
of:
Inc. v.
reasons,
Pursley,
we sustain
foregoing
appellant’s
(Tex.Civ.App.,
e.);
its
n.
and overrule
18.
Eastland
writ ref’d
r.
Petco
point 19
Plummer,
Corporation v.
brings us to
group
All of
(Tex.Civ.App., Dallas
writ ref’d n. r.
appellant complains
points wherein
e.); Skyline
Bradley,
Company
Cab
court’s admission
evidence of-
the trial
Houston
over the
appellees
objection
fered
ref’d n.
these
r.
each of
cases
the exclusion
of evidence
appellant
parties
settlements between
appellant
objection
offered
appellate
was excluded and the
court af-
appellees.
holding
firmed the decision
the evidence
appropriate
deem it
to note
We
inadmissible.
reversal of
judgment
here that
to obtain
Even if the evidence as offered was ad
the trial
judge,
an error of
based
missible,
claimed,
it was harmless error.
First,
two-pronged
appellant has a
burden.
no showing
We find
the exclusion of
judge’s
that the trial
he must show
determi
agreement
the settlement
was reasonably
*13
error; second,
in fact
nation was
that
probably
calculated
and
did result
reasonably calculated to cause
error was
improper judgment.
rendition of an
This is
cause
probably
and
did
rendition of an im
so
especially
where the
found Dr. Gon
judgment.
Grey
proper
Southwestern
negligent
where
zalez
there was other
Dickson,
Lines,
599,
Inc. v.
149 Tex.
hound
expert
testimony reflecting on the inade
(1951);
Wilson
City
quacy
warning.
Corpora
of Bristol’s
Petco
Lavaca,
Port
325 (Tex.Civ.App.,
Plummer, supra.
tion v.
1966,
e.);
writ
Christi
ref’d n. r.
434,
Rule
T.R.C.P.
Appellant’s points 21 and 22
complain of the exclusion of the abandoned
point 16
Appellant’s
complains of
pleadings
appellee, Ramon Gonzales.
from evidence of Supplemen
the exclusion
I)
error,
We find the exclusion to be
but we
contends,
Appellee
tal
of the 1970 PDR.
find
error harmless.
error,
that
if it was
response,
it was
agree. Appellant
error. We
harmless
con
Abandoned pleadings are admissible as
Supplement D was superior
tends that
declarations or
admissions
interests.
warning
the 1970 PDR
about Kantrex.
Head,
44,
Kirk v.
137 Tex.
inclusion cannot be of an im medical text introduced to the rendition standard led probability, a physician evidence but where and we find the error to as direct judgment proper injury expert or as testifies to disease harmless. recognizes a medical text as authori his injuries $990,157.00 would be if he ty, excerpts may be read from the text $25,000.00 obtained an income level of the weight discredit or test of his testimo $1,737,057.00 $45,000.00 if level was in fif- Eaton, ny. Seeley (Tex. years. teen He also testified that the inclu- Civ.App., Houston writ [14th Dist.] sion of the necessary expenses of producing Jones, n. r. ref’d Dr. Dr. Isensee and income was not “qualitatively significant”. recognized Dr. Gonzalez all Goodman & The jury rendered a verdict for plaintiff authority. Therefore, as Gillman cross-ex $800,000.00, in a sum of well below either of amination based the text permis was predicted the sums by Dr. Mayor. as to each doctor. sible The trial court’s appellant’s We overrule all of foregoing refusal to allow cross-examination of Dr. points about the admission of and the exclu- Gonzalez based Goodman & Gillman sion of evidence. Specifically, these are error. This error was rendered harm 16, 20, 21, points 22, 23, 24, 25, 26, 27, 28, 29, though less when the found Gonza 30, 31, 32, 33 and 34. negligent. lez Appellant’s point complains appellant In its contends that closing argument attorney testimony of Dr. Mayor, Thomas econo- third-party defendant, Dr. Gonzalez. That mist, and, speculative therefore, inad- argument was as follows: missible. We believe that our recent hold- “MR. MADDIN: Bristol, ... ing Bridge, in Borak v. S.W.2d 773 you let me tell (Tex.Civ.App., Corpus something. Dr. Rufino e.) was born. controlling ref’d n. r. is about He the admis- wasn’t created a sibility type of the board of complained directors. He breathes. here. He lives. appellant’s contention, He there- suffers. And he will die. fore, is without merit. MR. Honor, MEREDITH: Your that’s attempt try direct prejudice Appellant’s point complains jury because my client corporate the trial court’s refusal to allow cross-exam individual, client versus an exactly what economist, Mayor, of Dr. Thomas ination the Court instructed not to do. producing cost of income. We find no THE objection COURT: The is over- which have discussed this cases assertion ruled. before, but the decision of John F. Buckner Allen, (Tex.Civ.
and Sons S.W.2d 387 MR. MADDIN: Bristol-Myers But can writ) App., helpful. Austin be created this board of directors as Buckner, appellant complained long they can sell this stuff and go will money failure to include amount of on forever. It has no soul. It has no appellee pay taxes in the instruc conscience. It has no existence outside of jury. Appeals to the Court of tions Civil people print this stuff and sell affirmed, holding the jury’s duty was to drugs. these But Dr. Rufino Gonzalez is compensate injuries for his appellee and not case, just a victim in this exactly like that *16 might spend to determine how she or be pitiful specimen sitting over there is a obligated spend compensation. such Ap case, victim in this and he’s a victim of pellant’s Mayor cross-examination of Dr. good the old American hard-sell. A hard- required was directed at the expense of sell.” producing income. We believe this is analo argument probably This was error under payment to the gous of income tax exclud holdings of the following cases: Allis- We, therefore, ed in Buckner. find no error Mfg. Board, Chalmers Co. exclusion of this
in the evidence. (Tex.Civ.App., 1938, Amarillo writ); no
Further,
Carson,
if it was error to
Texas Indemnity
disallow cross-
Ins. Co. v.
21
this point,
examination on
it was
691 (Tex.Civ.App.,
1929,
harmless
S.W.2d
El Paso
Mayor
dism’d);
error. Dr.
testified that the present writ
Home Life & Accident Co. v.
necessary
compensate plaintiff
Jordan,
value
for
(Tex.Civ.App.,
433 plaintiff’s R. Co. v. ther testified that writ); Houston & T. C. verbal 1921, ability no (Tex.Civ.App., Spanish El Paso in and is rapidly 212 lost 219 has been Long, S.W. argument writ). deteriorating English. if the in To Even maintain this The mat- error, therapy reversible error. believed that ability, was not she would be Austin, complains do not appellant psycholo- Dr. a clinical necessary. ters about harm. Es- proof plaintiffs I.Q. facie at prima 126. This gist, evaluated constitute when we consider the this so upper Ramon Gonzales pecially placed score appellant scale, as “Dr. Bristol” to the indicating the test a very reference 10% of finding attorney; jury Austin, also, by appellant’s life. Dr. productive testified Gonzalez; and the Dr. negligence against suffering plaintiff frustra- damage to Ra- finding of less further in his ability conflict and his tion caused Mayor testimony than the mon capacity. To control this now limited build support. frustration, counseling was up of recom- initially weekly on a basis then mended and noted, a under Rule we have
As as needed. of error must show that complaining party reasonably calculated argument was
such Mayor person Thomas testified that a did, to, cause the rendition probably and plaintiff’s potential in the field of so- case, there judgment. In our improper an making pres- cial services a month $600.00 showing. Accordingly, appel- is no expect rapid ently could advancement and is overruled. point 35 lant’s years, that after 15 his income would be in $25,000.00per year category. Appellant’s point 37 is addressed jury’s verdict for Ramon size of makes no Appellant contention that $800,000.00 in the sum It was Gonzales. damages suffered Ramon Gonzales past wage future and earn the loss of position but takes the inconsequential, are past physi loss of future and ing capacity; with other eases by comparison wage earning than ca capacity, other cal excessive, grossly that it award is so must past and mental an and future pacity; produced by passion, prejudice or have been asserts that the trial Appellant guish. improper jury. motive of the We other do overruling defendant’s mo erred court in cases agree. damages of this trial because there was no for new tion with the proven certainty nature cannot be verdict; support jury’s it can in accuracy and other cases. Con contrary great weight verdict Toombs, System, tinental Bus Inc. v. 325 evidence; preponderance 153 Fort Worth S.W.2d was the result of bias jury’s verdict e.). Therefore, question n. r. writ ref’d appellant. Appellant prejudice damages properly jury. left with the the trial court have argues that should also Bloom, (Tex. Rosenblum S.W.2d a remittitur. ordered e.); writ ref’d n. r. Civ.App., Waco accident, At the time of the Ramon Gon- Gathering Texas Natural Gas Com South years projected old with a zales was Guerra, (Tex.Civ. pany v. S.W.2d years. age to 61.7 Prior to the acci- work r. writ ref’d n. App., Corpus Christi dent, outgoing, to have been an appeared Rodgers, (Tex. e.); Saper v. industrious, hard-working adult 1967, writ Civ.App., Houston [1st Dist.] clear from the record that he male. It is a clear In the absence of n. r. ref’d total, injuries resulting perma- sustained other passion, prejudice or showing that nent, bilateral deafness. jury matters influenced the improper will set aside as not be amount assessed Foster, and a speech psychologist Jan Bridge, Borak work, excessive. testified of Mr. Gonzales’ supervisor *17 1975, writ (Tex.Civ.App., accident, appellant since the that Duren, e.); v. 520 r. Bond S.W.2d ref’d n. Testi- and frustrated. withdrawn become 1975, Waco writ ref’d n. (Tex.Civ.App., Austin, 460 psychologist, clinical mony of Sons, Stewart, v. e.); & Inc. 379 fur- r. Skillern conclusion. Mrs. Foster this confirmed 434 1964, (Tex.Civ.App., 687 Fort Worth because of the
S.W.2d cumulative effect of the Cameo, e.); Incorporated ref’d n. r. v. writ foregoing complained errors of. For the Evans, (Tex.Civ.App., 703 377 S.W.2d San reasons heretofore set out in our discussion 1964, writ ref’d r.n. Antonio foregoing points, we appel- overrule point lant’s 38. alternative, appellant
In the
has re
forepart
We have held in the
of this
440,
remittitur under Rule
T.R.C.P.
quested
opinion that contribution is proper under
considering
compen
the excessiveness of
In
the evidence
findings of this
remittitur,
case.
required
we are
under
sation
Consequently, we reform the judgment
judicial
judgment
sound
and dis
exercise
the trial court and hold Dr. Gonzalez
in the ascertainment of what consti
liable
cretion
to Bristol for one-half of the
compensation
amount of
inju
reasonable
for the
tutes
Also,
judgment.
costs are
Flanigan
Carswell,
taxed
ry suffered.
v.
159 Tex.
one-half to
parties.
each of those
(1959);
There is no certain standard by personal injury damages can be measured, and each case must stand on its OPINION ON MOTION FOR circumstances, compar and a facts own REHEARING on amounts of verdicts with other cases ison Bristol, defendant-appellant, in its motion help. is of little or no Broesche v. therein rehearing complains about the manner Bullock, (Tex.Civ.App., 427 S.W .2d 89 Hous implemented we our holding regarding e.); writ n. ref’d r. J. ton [14th Dist.] right Bristol’s to contribution. Sons, Ellis, Inc. v. 412 Robinson S.W.2d A. Amarillo (Tex.Civ.App., writ ref’d 728 Instead of our holding Gonzalez, Bennett, v. e.); r. Claunch S.W.2d n. cross-defendant-appellee, liable to Bristol 1965, writ); (Tex.Civ.App., Amarillo no for one-half of the judgment, amount of the Morris, (Tex.Civ. Graham Bristol contends that we should have re 1963, writ); App., Amarillo no Missouri Pa judgment duced the amount one-half Company Handley, Railroad cific Contractors, under the doctrine of Palestine (Tex.Civ.App., Antonio San S.W.2d Perkins, Inc. v. (Tex.Sup. 1960, writ); O’Keeffe, Higginbotham v. no 1964). Perkins, Supreme our Court held (Tex.Civ.App., Amarillo 340 S.W.2d joint that where one tortfeasor settles with e.); n. 1960, writ ref’d r. Green v. Rud injured party and receives a covenant senske, San sue, not to injured precluded party 1959, writ); Hayter Lumber Co. Antonio recovering more than one-half of his Winder, 730 (Tex.Civ.App., 295 S.W.2d damages non-settling from the tortfeasor. dism’d). This rule is Beaumont The settlement between Ramon Gonzales policy the sound consideration based sufficiently and Dr. Gonzalez was similar to loss will occasion the same different the settlement Perkins to lend merit to depending to different individuals damages position. Bristol’s aptitude and the mental effect earning capacity. Claunch v. injuries Accordingly, we judg- now reform the Bennett, supra. ment of the trial court so as to award judgment Ramon Gonzales principles view of these and the facts $400,000.00 together in the sum of case, judgment, we do not find the provided by Also, law. interest as costs are discretion, judicial Ap- to be excessive. our to Ramon taxed one-half Gonzales and one request for remittitur is denied. pellant’s half to Bristol. point 37 is overruled. Appellant’s (38), appellant argues rehearing
In its final motion for Bristol’s is in all judgment below should be reversed other overruled. respects