Harang v. Aetna Life Ins. Co., 14696

• Citation: 400 S.W.2d 810
• Decision Date: 10 February 1966
• Docket Number: No. 14696,14696
• Parties: Hunter L. HARANG, Appellant, v. AETNA LIFE INSURANCE COMPANY et al., Appellees. . Houston
• Court: Texas Court of Appeals

Page 810

400 S.W.2d 810

Hunter L. HARANG, Appellant, v. AETNA LIFE INSURANCE COMPANY et al., Appellees.

No. 14696.

Court of Civil Appeals of Texas Houston.

Feb. 10, 1966.

Rehearings Denied March 31, 1966.

Phelps, Kilgarlin & Snell, Jim S. Phelps, Houston, for appellant.

Fred Parks, Ruby Sondock, Houston, for Aetna Life Ins. Co., appellee.

Bass C. Wallace, Brian E. O'Neill, Houston, Andrews, Kurth, Campbell & Jones, Houston, of counsel, for Dentist appellees.

WERLEIN, Justice.

This is an appeal from a summary judgment granted appellees. The suit was originally brought by appellant, Dr. Hunter L. Harang, on March 24, 1959, against Aetna Life Insurance Company, a Corporation, Aetna Casualty & Surety Company, a Corporation, Aetna Insurance Company of Hartford, a Corporation, Aetna Insurance Company, a Corporation, Langham, Langston & Burnett, a Corporation, Association or Partnership (designated in appellant's amended petition: Langham, Langston & Dyer), James E. Holt, Orlo James Mack, and Tommy W. Ross, sometimes referred to herein as Aetna Appellees, for actual and exemplary damages growing out of an alleged conspiracy, defamation, and interference with appellant's practice, occurring in 1958, and resulting in the revocation of appellant's membership in the Houston District Dental Society on June 18, 1958, and as a result thereof the deprivation of his right to place his patients in a number of hospitals in Harris County, since such hospitals deny their facilities to those not members of a recognized medical or dental society. On June 22, 1964, appellant filed his first amended original petition in which he added as defendants the following parties: Dr. John O. Wynn, Dr. Percy A. Wynn, Dr. Wayne H. Speer, Dr . Hutton A. Shearer, Dr. Oscar E. Ranfranz, and Dr. Geston M. Platt, who will be referred to herein as Dentist Appellees.

In his second amended original petition filed February 15, 1965, appellant pleaded at great length, and for the first time alleged that on May 27, 1964, there was a meeting at the Safari Club of the Houston Association of Oral Surgeons where were present the same group of dentists and insurance representatives that met in 1958, which meeting was set for the purpose of making sure that appellant never got back into the Houston District Dental Society and also for the purpose of planning to get the Texas State Board of Dental Examiners to bring action to revoke appellant's license. In his affidavit filed May 25, 1965, appellant stated that on April 19, 1964 his membership was voted on and that prior thereto a telephone committee had been set up for the purpose of calling the members of the Houston District Dental Society and to advise them to vote against appellant's readmittance to the membership of the Society.

It is our view that appellant's action against the dentist appellees to recover damages for the alleged overt acts in 1958 growing out of the alleged conspiracy occurring in 1958 was barred by the two or the four year statute of limitations of this State, which were pleaded by the dentist appellees in their first amended answer, and hence a summary judgment was warranted as to such acts. Rule 166A(c), Texas Rules of Civil Procedure, with respect to motions for summary judgments, provides, among other things:

'The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, 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.'

In Temco Feed Mills, Inc. v. Beckner, Tex.Civ.App., 366 S.W.2d 255, writ ref it was held that it was proper to grant a summary judgment for the defendant sued upon an action barred by the statute of limitations. In Birdwell v. American Bonding Company, Tex.Civ.App., 337 S.W.2d 120, writ ref., n .r.e., cert. den. 367 U.S. 904, 81 S.Ct. 1920, 6 L.Ed.2d 1250 the Court stated:

'In other words, we are of the opinion that a defendant is entitled to prevail in his motion for summary judgment based upon demonstration that the claim is barred by the affirmative defense of limitation in the absence of the plaintiff's ability to explain and excuse his delay by discharging his correlative burden (shifted to him as the result of the proof by the defendant) of specifying some evidence which would change the result otherwise undoubtedly achieved by the defendant as the moving party. McDonald, Texas Civil Practice, 'Judgments', sec. 17.26.1 '(Summary Judgments)--B. When Summary Judgment Proper'; LeMond and Kreager's article on 'The Scope of Pleading as Proof in Summary Judgment Procedure', 30 Tex.Law Review, pp. 613--619.'

The record shows that plaintiff initially filed suit against the Aetna Appellees on March 24, 1959, but he did not join the dentist appellees until June 22, 1964. Appellant admits in effect that the two year statute of limitations applies to a conspiracy suit. He is apparently predicating his cause of action entirely upon the alleged conspiracy as shown by his statement on page 49 of his brief, as follows:

'In this case we have alleged a conspiracy and in the alternative that the Defendants have libeled and slandered the Plaintiff, as well as interfered illegally in his right to conduct his profession. We will not even attempt to cover the alternatives in this brief.' In view of appellant's statement, this appeal is limited to the conspiracy complaint.

Appellant cites the case of Steiner v. 20th Century-Fox Film Corp., 9th Cir. 1956, 232 F.2d 190, 194, 195, to the effect that 'The statute of limitations in a civil conspiracy ruins from the commission of the last overt act alleged to have caused damage.' The Court in the Steiner case said:

'The overt acts alleged the this case concern the lease terms obtained by appellees in 1935, 1936, and 1937. The options to renew received in 1938 and the closing of the Larchmont Theatre in 1952 are also claimed to be overt acts. Only the closing of the theatre is sufficient to bring the complaint outside the bar of the three-year California statute of limitations.'

We are of the opinion that each continued invasion of the plaintiff's interest causing loss and damage in a conspiracy case is in effect a new cause of action, and the statute of limitations begins to run when it occurs. See Radio Corporation of America v. Rauland Corp., D.C., 186 F.Supp. 704, 707, and authorities cited.

In Northern Kentucky Tel. Co. v. Southern Bell T. & T. Co., 6th Cir. 1934, 73 F.2d 333, 97 A.L.R. 133, the Court used the following language:

'In the instant case there are no overt acts alleged to have been committed within one year prior to the filing of the action. In Nalle v. Oyster, 230 U.S. 165, at page 182, 33 S.Ct. 1043, 57 L.Ed. 1439, it was said to be a well-settled rule that no civil action will lie for a conspiracy unless there be an overt act that results in damage to the plaintiff. A necessary corollary to this rule would seem to be that, when there is an overt act, or the last of a contemplated series of overt acts, the cause of action accrues and the statute of limitations begins to run. If this were not true, then it would result that, in every case where damages resulting from a wrongful act are in their nature continuing, there would be no limitation upon the right of action, and the beneficent purpose of the statute to put a period to the right to sue would be defeated . This would apply equally whether the one-year or the five-year statute governed. We conclude that the plaintiff's action is barred, and it becomes unnecessary to consider the other questions in the case.'

Appellant has set out only one alleged overt act occurring within two years prior to the time the dentist appellees were joined as parties in the suit on June 22, 1964 and one overt act alleged to have occurred subsequent to the time the dentist appellees were joined. The first of these alleged acts was described in appellant's affidavit as occurring at a meeting of the Houston Society of Oral Surgeons at the Saferi Club in May of 1964, as follows: 'Plans were even made at this meeting at the Safari Club for the taking of my license and having my office privileges in the Medical Towers Building taken away from me.' In another affidavit appellant stated in substance that at a regular monthly meeting of the Houston District Dental Society in April, 1965, a paper was read by the defendant, Hutton A. Shearer, as a representative of all the dentist appellees, to request the Houston District Dental Society to continue to refuse appellant membership in said organization. In such affidavits appellant recited that he had personal knowledge that such incidents occurred. The fact is, however, that he could not have had personal knowledge of the complained of proceedings at said two meetings since he was not a member of either group, nor was he present at either meeting. In one of his affidavits in which appellant referred to the alleged meeting at the Safari Club in 1964 and the meeting of the Dental Society in 1965, he stated: '* * * these same doctor defendants arranged it so that I was not allowed to attend the meetings.'

The law is well settled that an affidavit based on hearsay is insufficient to warrant the overruling of a motion for summary judgment. See Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, writ ref. Nowhere in his affidavits does appellant allege he was present at said meetings in June, 1964 and April, 1965. He swore just to the contrary. His affidavit was obviously based upon hearsay, and cannot be construed as raising a genuine fact issue. See Drake v. First National Bank, Tex.Civ.App., 254 S.W.2d 230. Furthermore, appellant has failed to allege any overt act which occurred as a result of the meeting at the Safari Club in May, 1964. In a civil conspiracy, as stated in the Steiner case, supra, the statute of limitations...