Gerland's Food Fair, Inc. v. Hare

Decision Date23 October 1980
Docket NumberNo. 17742,17742
Citation611 S.W.2d 113
PartiesGERLAND'S FOOD FAIR, INC., Appellant, v. Jo Anne HARE et vir, Appellees. (1st Dist.)
CourtTexas Court of Appeals

Crady & Peden, Clare S. Hirling, Houston, for appellant.

Richard B. Stilwell, Houston, for appellees.

Before PEDEN, EVANS and WARREN, JJ.

PEDEN, Justice.

Gerland's Food Fair, Inc. appeals by writ of error from a default judgment in a slip and fall suit brought by Jo Anne Hare and her husband, Desmond Hare. The appellant complains that the trial court erred in entering the default judgment because the appellees' petition failed to state a cause of action against it, because no proper service of process was obtained, and because the evidence is insufficient to support the damage awards of $500,000 to Mrs. Hare and $100,000 to Mr. Hare. We order a remittitur of $250,000 as to damages awarded to Mrs. Hare and $60,000 as to Mr. Hare.

In its first point of error the appellant complains that the plaintiffs' petition fails to state a cause of action. Specifically, appellant says the petition alleges no facts giving rise to a duty for the defendant to act because it contains no allegation that the defendant owned, occupied, or controlled the premises in question. Further, appellant argues that the plaintiffs' allegations amount only to assertions that the events in question occurred in a grocery store whose name was similar to the defendant's corporate name.

The caption of the plaintiffs' petition is: "Jo Anne Hare et vir vs. Gerland's Food Fair, Inc." In the opening sentence the plaintiffs complain of "Gerland's Food Fair, hereinafter referred to as Defendant", but in paragraph I they say: "The Defendant, Gerland's Food Fair, Inc. ..."

In the next paragraph they allege that Mrs. Hare "was shopping for groceries in Gerland's Food Fair at 10505 Telephone Road.... Plaintiff was proceeding down one of the aisles in the Defendant Grocery Store..." when she slipped in an oily substance and fell to the floor. The petition then contains three specific allegations of negligence on the part of "the Defendant store" in causing or permitting the oil to be on the floor.

In the 1979 case of Stoner v. Thompson, 578 S.W.2d 679, the Texas Supreme Court reviewed Texas law as to the requirement that a plaintiff's petition state a cause of action if a default judgment based upon it is to withstand a direct appeal:

In determining whether a cause of action was pled, plaintiff's pleadings must be adequate for the court to be able, from an examination of the plaintiff's pleadings alone, to ascertain with reasonable certainty and without resorting to information aliunde the elements of plaintiff's cause of action and the relief sought with sufficient information upon which to base a judgment. C & H Transportation Company v. Wright, 396 S.W.2d 443 (Tex.Civ.App.1965, writ ref'd n. r. e.). Mere formalities, minor defects and technical insufficiencies will not invalidate a default judgment where the petition states a cause of action and gives "fair notice" to the opposing party of the relief sought. Edwards Feed Mill v. Johnson, 158 Tex. 313, 311 S.W.2d 232 (1958).

... The controlling principle has been correctly summarized:

"The rules expressly countenance more general allegations than formerly were permitted, and the default judgment will stand if the plaintiff has alleged a claim upon which the substantive law will give relief, and has done so with sufficient particularity to give fair notice to the defendant of the basis of his complaint, even though he has stated some element or elements in the form of legal conclusions which will need to be revised if attacked by special exceptions." 4 McDonald, Texas Civil Practice § 17.23.3 at 120 (1971).

We hold that the plaintiffs' petition gives fair notice to the defendant that the events in question allegedly occurred at the corporation's grocery store on Telephone Road.

In its second and third points of error, the appellant complains of the sufficiency of service of process. The plaintiff's petition recites that the defendant can be served through its duly registered agent, Mr. A. J. Gerland, Jr. The constable's return indicates that it was executed on March 1, 1979, "by summoning the Gerland's Food Fair, Inc. a corporation by delivering to E. L. Peterson , in person vice-president of the said corporation a true copy of this writ, together with accompanying certified copy plaintiff's original petition." There is no other reference in the record to E. L. Peterson or to any vice-president of the defendant corporation.

Appellant contends that service is defective because: 1) the person to whom the citation was delivered is not the person to whom it was addressed, and 2) the face of the record does not affirmatively show that E. L. Peterson is in fact the vice-president of the corporation.

The presumptions which are ordinarily made in support of due service do not apply when a direct attack is made upon a default judgment, and the record in such a case must affirmatively show strict compliance with the provided mode of service. Whitney v. L & L Realty Corporation, 500 S.W.2d 94 (Tex.1973); McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965); Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934 (1935). However, Article 2.11 of the Texas Business Corporation Act provides that a domestic corporation may be served by delivering process to its president, vice-presidents or registered agent. Since the citation in this case was delivered to a vice-president of the corporation, the required compliance has been demonstrated. The statement in the constable's return that E. L. Peterson is a vice-president of the corporation is prima facie evidence that he is indeed such officer and suffices to show valid service. NRTRX Corporation v. Story, 582 S.W.2d 225 (Tex.Civ.App.1979, writ ref. n. r. e.); Pipe Line Park Properties, Inc. v. Fraser, 398 S.W.2d 154 (Tex.Civ.App.1965, no writ). See also 2 McDonald, Texas Civil Practice §§ 9.16-9.17.

In its other four points of error the appellant complains that there is no evidence or insufficient evidence in the record to support the trial court's award of damages to the plaintiffs. Appellant contends that: 1) there was no evidence that medical expenses already incurred were either necessary or reasonable, 2) there was no evidence at all regarding the amount of future medical expenses, 3) the expert testimony did not establish a causal connection between all of Mrs. Hare's claimed injuries and her fall in the grocery store, and 4) the plaintiffs' own medical expert testified that many of the claimed injuries would not be permanent.

The petition states in general terms that Mrs. Hare sustained permanent and serious injuries causing her to require medical attention in the past and in the future. It alleges that as a direct result of her fall she was caused to suffer physical pain and mental anguish, has incurred necessary and reasonable medical expenses, will sustain extensive medical expenses in the future, and has sustained a loss of earning capacity. She alleges that she has been damaged in the sum of $500,000.

The only allegation regarding Mr. Hare's cause of action is that as a result of his wife's fall he has been damaged by the loss of his wife's services in and around the house. He alleges that his damages amount to $100,000.

At the hearing on damages, Mr. and Mrs. Hare testified briefly. The only other evidence offered was a deposition of Dr. Robert J. Goodall, a neurological surgeon, taken by the Hares' attorney. The appellant does not complain of the admissibility of Dr. Goodall's deposition testimony as a whole, only of those parts of it which relate to information given him by others. Appended to the deposition are various documents which purport to be a curriculum vitae of Dr. Goodall, letters from various physicians who examined Mrs. Hare, and assorted medical records and reports. Most of these documents are hearsay with respect to the hearing on damages, and only Dr. Goodall's own reports are sufficiently authenticated or otherwise shown to be admissible under any exception to the rule against hearsay. Except for his reports, they are without probative force and will not support the judgment. Aetna Insurance Company v. Klein, 160 Tex. 61, 325 S.W.2d 376 (1959).

If the trial court's award is to stand, competent evidence to support it must be found in the testimony of the Hares and the deposition and reports of Dr. Goodall. Since the cause of action is unliquidated, the court must hear evidence as to damages and render judgment therefor. Rule 243, Texas Rules of Civil Procedure.

Lost earning capacity. There is no evidence to support an award under this element of the damages. There is no testimony that Mrs. Hare has ever been employed or even that she has worked in and around the home, and no value is given for any services she may have rendered in the past or might have been expected to render in the future. Even if we infer from the fact of injury that she is less capable of earning money than she was before the injury, there is still no way for us to determine the degree of any such impairment. See Bonney v. San Antonio Transit Company, 160 Tex. 11, 325 S.W.2d 117 (1959); Martin v. Weaver, 161 S.W.2d 812 (Tex.Civ.App.1941, writ ref. w. o. m.); Stoner v. Hudgins, 568 S.W.2d 898 (Tex.Civ.App.1978, writ ref. n. r. e.). See also, generally, Annot., "Sufficiency of Evidence in Personal Injury Action to Prove Impairment of Earning Capacity and to Warrant Instructions to Jury Thereon," 18 A.L.R.3d 88 (1968).

Medical Expenses. The evidence regarding Mrs. Hare's medical expenses was insufficient to support an award of damages. She testified that she was taking medication for seizures, which she said she had not experienced before the fall, that she was hospitalized on the day of the fall, and that she...

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