TEXAS DEPARTMENT OF CORRECTIONS, Pеtitioner, v. James W. HERRING, Respondent.
No. B-4341.
Supreme Court of Texas.
July 24, 1974.
Rehearing Denied Sept. 24, 1974.
“Each party to a suit shall be liable for all costs incurred by him. If the costs cannot be collected from the party against whom they have been adjudged, execution may issue against any party in such suit for the amount of cоsts incurred by such party, but no more.”
Since this Court still has jurisdiction of the cause, it may, and does now, correct its judgment as to court costs as follows:
All court costs incurred by the defendant, R. W. McKinney, in this Court are adjudged against him and no costs are adjudged against Naсogdoches Independent School District.
All costs in the lower courts shall remain adjudged against said defendant as provided by the judgment of the Court of Civil Appeals, the defendant not having appealed from that portion of the judgment. Reaugh v. McCollum Exploration Co., 140 Tex. 322, 167 S.W.2d 727 (1943).
Moore, Morris & Payne, Louis M. Moore, Houston, for respondent.
SAM D. JOHNSON, Justice.
Suit for damages brought under the Texas Tort Claims Act.1 James W. Herring brought this action for personal injuries against the Texas Department of Corrections. The trial court held that, as a matter of law, Herring did not have a cause of action under the Texas Tort Claims Act and rendered a take-nothing summary judgment with prejudice. The court of civil appeals reversed and remanded. 500 S.W.2d 718. We affirm the judgment of the court of civil appeals.
Plaintiff Herring, a prisoner of the Texas Department of Corrections at Huntsville, received an accidental injury to the right side of his face in a basketball game. He received medical treatment at the prison hospital and later at The University of Texas Medical Branch Hospital in Galveston. Despite such treatment Herring lost all vision in his right eye. Herring‘s petition did not аllege specific acts of negligence; rather, his petition contained only a general allegation of negligence which was “negligence in failing to provide adequate medical care and treatment.”
Herring served written interrogatоries on “[t]he Department of Corrections, Defendant herein, by and through its Attorney of Record, John L. Hill, Attorney General of Texas, . . . .” These interrogatories, among other things, sought the basic information needed to assert specific allegations of negligence: the names of doctors, nurses and paraprofessionals who treated the plaintiff, details of his injury and the medical treatment administered to him. The Department of Corrections moved to strike the interrogatories on the ground that
As a general rule, the State litigates as any other party in Texas courts “When the state becomes a litigant in the courts it must observe and is bound by the same rules of procedure that bind all other litigants, except where special provision is made to the contrary.” Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83, 90 (1955). See also Products Corporation” cite=“421 S.W.2d 409” court=“Tex. Civ. App.” date=“1967“>State v. Jasco Aluminum Products Corрoration, 421 S.W.2d 409 (Tex.Civ.App.-Austin 1967, no writ). Laws and rules governing evidence, burden of proof, cross complaints, pleadings, instructed verdicts and summary judgments bind the State and other litigants uniformly. See State v. Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d 707 (1943); Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562 (1943); and Note, 43 Tex.L.Rev. 979, 982 (1965).
Under
Despite this similarity in purpose, there is one Texas case which would seem to run contra to Federal authority. Harrington v. State, 385 S.W.2d 411 (Tex.Civ.App.-Austin 1964, reversed on other grounds, 407 S.W.2d 467 (Tex.1966), cert. denied, 386 U.S. 944, 87 S.Ct. 977, 17 L.Ed.2d 874 (1967). In Harringtоn the court of civil appeals specifically exempted the State from answering interrogatories. The intermediate appellate court relied on
After review of Harrington in connection with the instant case, we are of the opinion that the court of civil appeals in Harrington was in error in excluding the Stаte from the ambit of
The plaintiff here, Herring, followed the procedure outlined in
Aside from the preliminary question relative to interrogаtories, the only issue to be resolved is whether the Department of Corrections was entitled to a summary judgment. The Texas Tort Claims Act,
“Sec. 3. Each unit of government in the state shall be liable for money damages for personal injuries or death when proximаtely caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, оther than motor-driven equipment used in connection with the operaton of floodgates or water release equipment by river authorities created under the laws of this state, under circumstances where such officer or employee would bе personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where suсh unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. . . .”
Herring relies on the State‘s liability for “use of tangible property.” In the plaintiff‘s petition, containing the very general allegation of negligence, he asserted that the Texas Department of Corrections and its agents and/or employees were negligent in “failing to provide adequate medical care and treatment.” The Department of Corrections, without anything more than its motion to strike interrogatories, moved for summary judgment, asserting that “Plaintiff‘s allegations fail to bring him within the requirements of the Texas Tort Claims Act and there is no legal authority for an action such as alleged by Plaintiff against this Defendant.” Although not pointed out specifically in the motion, the Department of Corrections argues here that a failure to give medical care cannot involve the use of tangible property, citing Beggs v. Texas Dep‘t of Mental Health & Mental Ret., 496 S.W.2d 252 (Tex.Civ.App.-San Antonio 1973, writ ref‘d). This court agrees that Herring‘s pleadings failed to statе a cause of action since no “use of tangible property” was alleged as required by the Texas Tort Claims Act.
However, the question to be resolved is whether Herring, under the instant circumstances, may be denied the opportunity to amend his pleаdings because they were attacked via a summary judgment motion instead of a special exception. It is recognized that a party may plead himself out of court; e. g., the plaintiff may plead facts which affirmatively negate his cause of аction. See for example Morris v. Hargrove, 351 S.W.2d 666 (Tex.Civ.App.-Austin 1961, writ ref‘d n. r. e.), and Schroeder v. Texas & Pacific Ry. Co., 243 S.W.2d 261 (Tex.Civ.App.-Dallas 1951, no writ). In such instance it is proper to grant the defendant‘s motion for summary judgment. The instant case is clearly distinguishable however. Here, as we have held, Herring‘s рleadings were insufficient; that is, they failed to state a cause of action. The Department of Corrections leveled no special exceptions to Herring‘s pleadings and thus no opportunity to amend his pleadings to state a cause оf action was afforded.
Had the Department of Corrections filed special exceptions which were sustained by the court, Herring would have had an opportunity to amend as a matter of right. McCamey v. Kinnear, 484 S.W.2d 150 (Tex.Civ.App.-Beaumont 1972, writ ref‘d n. r. e.). But only after a party has been given an oppоrtunity to amend after special exceptions have been sustained may the case be dismissed for failure to state a cause of action.
In the instant case Herring was precluded opportunity to amend his pleadings once the trial cоurt had granted the motion for summary judgment. This court believes that the protective features of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings where plaintiff‘s pleadings, as here, fail tо state a cause of action. To do so would revive the general demurrer discarded by
We agree with the court of civil appeals that the instant motion for summary judgment alleging that the plaintiff‘s pleadings fail to state a cause of action cannot take the place of a special exception. Accordingly, this case must be returned to the trial court. If the Department of Corrections files a special exception which is sustained and Herring still fails to state a cause of action,3 then the case may properly be dismissed.
The judgment of the court of civil appeals is affirmed.
Dissenting opinion by WALKER, J., in which GREENHILL, C. J., joins.
WALKER, Justice (dissenting).
GREENHILL, C. J., joins in this dissent.