MacLay v. Kelsey-Seybold Clinic
456 S.W.2d 229
Tex. App.
1970
Check Treatment

*1 distributorships patent they desired Free-Flow involved a exclusive Muffler Austin, city excep- and into monopoly, which and with few within entered upon they illegal only tions, that are not contracts basis conditions securing distributorships. im- property, exclusive regard with to kind of by Appellees’ complaint sole dis- posed patentee agreed that three to article, Austin, placed tributors were rather to right sell the licensee which ter- overlapping fact than two resulted upheld will be the courts. The up thereby exclusivity keep destroying ritories the conditions the contracts they quoted prices to render for which monopoly fix does not contracted. The testimony, upon illegal. Monopolies, Appellees rely which the them Combina- See below, tions, etc., p. judgment 18 to sustain the Tex.Jur.2d, Sec. court Appellant is to the effect that the and the cases there cited. breached agreement by putting the third distribu- in Austin overlapping tor the exclusive pleading, particu The rules territory, Appellees known larly require Tex.R.Civ.P. 94 occur, going that this they breach to illegality specifically a contract be would never have entered into con- pleaded illegality where the the contract tracts. necessarily appear does not from presentation of ille Where the case. attempt In an bring an action depends gality extraneous facts illegal founded an contract the courts itself, appear from the contract uniformly they this State have held necessary prove from the evidence parties they will leave the where found contract, necessarily depend upon it must matter, them. and, extraneous facts which is new available, pleaded. must v. Mullin of the trial court is re- Co., Nash-El Paso Motor 250 S.W. and judgment versed here rendered that (Tex.Civ.App., Paso, 1923, ref’d); El writ Appellees nothing by take their suit. Acceptance Blackwell v. General Motors

Corp., Reversed and (Tex.Civ.App., 54 S.W.2d 251 rendered.

Amarillo, writ); Harris Niles v.

County Fresh Water No. Supply District

1-A, (Tex.Civ.App., 339 S.W.2d 562 Waco ref’d). agree

Nor can we Appellees’ con-

tention that this “simple is a fraud case” Appellant where Appellees induced to enter MACLAY,Appellant, John Dale into these contracts making untrue statements, untrue; known them to be that the classic relief for such plight Appellee. CLINIC, KELSEY-SEYBOLD rescission contract fraud which No. 15614. granted

was the relief by the district Appeals Texas, court; theory Court Civil that this supported by (1st Dist.). Houston authority Nu-Enamel Paint Dav- Co. v. is, 63 S.W.2d 861 (Tex.Civ.App., Fort April Worth, 1933, dism’d). er. Denied June Nu-Enamel distinguished, can be if for reason, no other in that the specifi-

cally pointed out that the ques- contract in

tion not illegal. position entire

taken by Appellees here is to admit that *2 Welch, Matthews, Jr.,

Robert M. Dan G. Crooker, Freeman, Houston, Fulbright, Houston, counsel, Jaworski, Bates & appellee.
PEDEN, Justice. Plaintiff Alienation of affections case. Kelsey-Seybold both sued Dr. Brewer and Clinic, Dr. a medical of which partner. per- has Brewer was a Plaintiff appeal fected from the of a granting clinic. summary judgment in favor of the against Brewer The cause action Dr. pending. and still has severed petition plaintiff, The Ma- John Brewer, clay, alleged that Earl both Dr. J. him, and the had Clinic treated his wife Jr. medically and their children for several Brewer, years pediatri- and that as cian and one of the had been the doctor to whom wife beginning taken their That children. late Dr. Brewer and en- conceived tered into a scheme to alienate the affec- plaintiff’s wife, tions Maria Mrs. Maclay, showering gifts his attentions and April May her until when her affections for the were alien- ated as a direct result of Dr. ac- Brewer’s tions, causing separate her from plaintiff. appellant’s petition

The further designed to al- that Dr. Brewer’s actions Maclay Mrs. ienate affections of acting medical doc- he was as made while family in tor for the course employment of his as a in- Kelsey-Seybold ner allegedly oc- cluded certain actions November, June, between 1966 and curred Kelsey, Clinic, through Dr. That the knowledge since partner, had managing by April, such actions before treat- were the Brewer while fami- plaintiff and his ing doctors for the to, consented ly, and that of its conduct such Houston, Austin, and condoned Dabney, Jr., Robert L. disap- try to halt or refused to counsel, Houston, Northrop, Dabney of his actions. prove appellant.' lationship exemplary existed between Dr. Brew- plaintiff seeks actual Maclay. sev- jointly, er and damages defendants from the con- individually loss erally has offered no affirmative and affections of his wife. sortium question defenses. *3 summary proof es judgment whether the judge trial the October On a matter tablishes as of law that there motion signed granting an order the second more genuine issue of fact no as to one summary judgment by defendant for filed plaintiff’s of elements the essential

Kelsey-Seybold motion Its first Clinic. 166-A(c), cause Rule Texas of action. had been denied. Procedure; Rules of Civil Gibbs v. Gener plaintiff urges points of error. two Corp., (Tex. al Motors S.W.2d 827 They are: 1970). Appellee, having clearly 1. failed to summary judgment in this evidence absolutely that there show no fact is- depositions per- the case includes of three held sues which it could be Kelsey, Mavis chairman of the sons: Dr. standing in fiduciary while relation to Brown, staff the Helen nurse of wife, appellant, family, his and with began working at who the Clinic and with partner Brewer, co-fiduciary, and Dr. for (two Dr. Brewer on March weeks alienating Brewer’s breach of the trust plaintiff’s original filed) petition after was wife, appellant’s affections of before either Bakken, the and administrator of James or after the clinic it under the knew of any not depositions Clinic. It does include other the circumstances reflected Maclay. of of Dr. Brewer or Maria Mrs. record, the ap- trial granting court erred in the does include Clinic’smedical records pellee’s summary second motion judg- Maclay family and an affidavit of ment, and in entering appel- that all the members executive committee nothing by against lant take the his suit except Brewer, stating of the Clinic Dr. clinic. charged that such committee is re- setting policy sponsibility for Appellee’s summary first motion for the nership, partner- that of business the judgment having the overruled clinic, ship operating that a medical Werlein, Ewing presiding Honorable by the Brewer was not Dr. authorized the record the before the trial at any at any act time to do hearing being on its second motion identi- might result in which the alienation of Werlein, cal to the record Judge before Maclay Maria hus- affections of from her trial court erred in appellee’s sec- granting band and that had done ond motion for summary judgment and purpose, to al- design act with the intent or setting aside Judge thus Werlein’s earlier ienate her affections. ruling. deposition Helen Nurse Brown’s purpose summary For the judg- of this any negative any not issue fact as to es- only, ment the Clinic concedes: element of the sential cause Dr. Brewer 1) was a She was able to testify action. Clinic; she did know of the not occurrence of events; say she could not 2) Maclay family pa- members were they not did occur. Clinic; tients of the Kelsey’s stated, deposition In Dr. he 3) Dr. Brewer Maclay’s alienated Mrs. things, among other that he is chairman affections. the staff of Clinic. That he treated 4) Kelsey Dr. in April, informed ten plaintiff or fifteen years ago

1967 Maclay improper that an re- other doctors treated have (Tex.Sup.1958); since then. W.2d his wife and children him and C.J.S. 168,page Partnership spring time That at some that Dr. complained to him plaintiff made An affidavit Mrs. having an affair with Brewer was opposition to the Clinic’s motion filed time a doc- Maclay and at about the same Maclay In it stat- summary judgment. Maclay him also called tor related to Mrs. if Kelsey to ask that he had called ed that he He stated the same matter. about had a ro- Brewer aware that Dr. he was it until about did talk to Dr. Brewer not Maclay interest with mantic He did after this suit had been filed. it and Kelsey said he was aware hap- possible improper acts it believe Maclay’s to a relative Mrs. had talked possibly pened and he couldn’t about it. lives, outside keep up private with the *4 the That fifty over doctors. of appellant’s first sustain the We inten- adopted policy has not a of has not estab The Clinic point of error. Maclay’s affec- alienating tionally that there is matter law lished as a ex- patient a tions. female Whenever essential ele fact as to an genuine issue of in the by a doctor amined or treated action: plaintiff’s cause of of the ment That the always present. a nurse is the al namely, it had consented whether any improp- put up wouldn’t Brewer. leged wrongful conduct of Maclay told in That er acts the Clinic. holding neces- it is not our In view of he and his wife him when he called appellant’s other sary reach the us to for separated. sec- point or his arguments under his first impres- Kelsey stated that also point. ond two purpose of the of the sion trial court is re- the The sympathy. was to seek telephone calls is remanded. cause versed do him to the had not asked That any- not anything and that he had done

thing. On Motion testimony of Bakken deposition Mr. general points appellee out the any matter of law establish as a not nonparticipating partner rule is that concerned. which this fact with act was done not liable unless the tortious authority. scope of the course and within gist of an alientation of affec exception this rule is adds an purposeful is the intentional or tions action part- recognized nonparticipating when the spouse alienation of the affections of one adopts ner or ratifies the unauthorized Rearick, 218 from the other. Williams exception conduct, and it that an asserts writ); (Tex.Civ.App.1949, no S.W.2d 225 adop- or (or based on consent ratification (Tex. Perry, Collier v. 149 S.W.2d 292 pur- applies only acts tion) to unauthorized Civ.App.1941, judg. corr.); err. dism. of, the ben- portedly done on behalf or Wife, Husband and the act. Tex.Jur.2d efit of one to have ratified in The rule the K & G Oil Tool stated partner is or non-participating “A case, supra, quoted our Co. Service the dinarily personally liable for been observed opinion, frequently has the or wrongful, tortious criminal acts texts, slightly opinions and sometimes acting partner unless such acts are within different terms. scope partnership’s business or authorized, to, opinion In K & G case our Su- ratified or were consented Co. v. preme Petroleum adopted by non-participating partner.” Court cited Corona (Tex.Civ. Jameson, 146 S.W.2d & Service Co. v. G & G K & G Oil Tool Service, dism., judg.), when Fishing App.1940, correct Tool 314 S. Tex. agent point. on this each one is authorized it enunciated the Texas rule any perform act within the In it stated: others to Corona was partnership enterprise, if one of “To hold all members of a them, prosecution of the business severally, be jointly it must liable partnership, guilty of a willful appear from the made to evidence another, wrong the other towards wrongful offending one acts of that, if will be one were, law, partner- authorized guilty an act outside ship, performance were done in the or injury, the other business which causes the further- something connected with appear partners will not be liable unless it copartner- ance of the interests of expressly that such act authorized things ship; may proved these di- or, them, per after the same had been * * *” rect or circumstantial evidence. interest, they formed in their behalf and expressly had either same case, Silverman, leading A Schloss v. knowingly received the fruits (1937), 172 Md. A. 343 discusses ” wrongful Citing Page act.’ v. Citizens application of the rule to a fact number of Co., Bkg. (1900). 111 Ga. S.E. weight situations and states “the of author- ity supports the view where one case, The & Oil Tool & Service Co. K G ner tort commits willful malicious supra, ap- broadly enough states the rule *5 scope agency not within the of the or the ply to either acts which were consented to partnership, common business to by nonparticipating part- or authorized which the other have not consent- members ner. find no which indi- We Texas case ed, ratified, they and which has not been to the character of needed cates consent are not liable for harm caused.” thereby nonparticipating partner make a but holding in the v. note case of Gilbert frequently A cited statement of the rule Emmons, 143, 42 Ill. 89 Am.Dec. 412 262, 40 Partnership found at Amer.Jur. 1325, (1866), cited at 120 that mere A.L.R. necessary “A foundation for the knowledge partner and consent of one in liability partnership or the copartner causing the act a in the arrest the tortious copartner act of a that the person charge larceny a on of mon- performed act shall line of ey belonging to the firm not render the will business, copartnership injury and if the partner knowing consenting so liable results from a wanton or wilful act of one prosecution, to an action for malicious but parties of the agen- committed outside the necessary it is that the consent be of such cy business, or common person then the a character as amount advice and co- to to doing the act and causing injury operation. responsible, alone unless the act which con- by stituted the tort was authorized required have not Other courts members partnership subsequent- or than In Dul consent shown be more tacit. ly them, by having ratified itself the act Solomon, chevsky 241 P. v. 136 Wash. done their behalf Acri, and interest.” (1925), cited Vrabel Does “the act itself been done having 30 A.L.R.2d Ohio St. N.E.2d their behalf and apply interest” to acts au- (1952) which was cited in the K G thorized as by well as case, those ratified supra, jury it was held that a issue as other members of partnership? We liability to for a of Morris Solomon willful only look to the case cited the text in his and malicious attack on customer support rule, Weeks, Solomon, Idom v. 135 partner, Joseph was raised ev Miss. explanation 99 So. 761. In present but did not idence Morris was point it was stated: just “‘The authorities say held to be anything. or do This was that, cited establish simply aas to fact issue as sufficient evidence raise a is an aggregation individuals, Joseph’s where Morris’ attack. tacit consent

“The is as Heiz rule stated Polis v.

mann, (1923), 276 Pa. 120 A. 269 that, of

which decided while the act of the during a partner committed

fending was

transaction which was within the business,

the firm’s of assault offense not, and said: ‘The case different sought

where the master to be

charged present at the assault and * *” * protest.’ failed to

We cited consider the cases position that the appellee support its may held to have purportedly those unauthorized acts benefit, we its but

done behalf of or O’Brien, agree

do not Sullivan v. ref.), (Tex.Civ.App.1935

S.W.2d

supports argument that consent alone liability nonparti

cannot establish of a

cipating partner for malicious acts of

copartner. We believe that the Sullivan

case it was not that the defendants shown of the one whose acts were

allegedly malicious. speculate us sum- is not for in this *6 pos-

mary judgment proceeding on what

siblity might appellant’s there in a the merits that

showing trial on Brewer’s consented to

alleged conduct. appellee’s rehearing motion

denied. Weil, Dubner, Christopher M.

Ronald A. Dallas, for appellant. MABERRY, Joe F. Appellant, Holt, Dallas, appellees. Fox John E. JULIAN et John Appellees. al.,

No. 7978. CHADICK, Chief Justice. Texas, Appeals of Court of Civil upon a written his demand Grounding Texarkana. contract, meruit, alternately quantum Joe June Maberry sued E. F. Julian Julian John severally jointly and Enterprises, Inc. June Denied commission. broker’s estate recover real E. motion of

On Julian John Julian Inc., summary Enterprises, Maberry district entered