Hooper v. Torres, 08-89-00306-CV

• Court: Court of Appeals of Texas
• Citation: 790 S.W.2d 757
• Docket Number: No. 08-89-00306-CV,08-89-00306-CV
• Parties: James HOOPER a/k/a Jim Hooper and Sawyer Transportation, Appellants, v. Janie TORRES, Appellee.
• Decision Date: 09 May 1990

Page 757

790 S.W.2d 757

James HOOPER a/k/a Jim Hooper and Sawyer Transportation, Appellants, v. Janie TORRES, Appellee.

No. 08-89-00306-CV.

Court of Appeals of Texas,

El Paso.

May 9, 1990.

Rehearing Overruled June 13, 1990.

Jack Brewster, Brewster and Mayhall, El Paso, Royal H. Brin, Jr., Strasburger & Price, Dallas, for appellants.

Doris Sipes, Susan Larsen (on appeal only), El Paso, for appellee.

Before OSBORN, C.J., and FULLER and WOODARD, JJ.

OPINION

OSBORN, Chief Justice.

This is an appeal from a judgment based upon a jury verdict awarding damages for personal injuries sustained by Janie Torres when her car was involved in an accident with a truck being driven by James Hooper who was alleged to be an employee of Sawyer Transportation.

The accident occurred on August 1, 1981 and suit was filed on August 4, 1983. An amended petition alleged that "Defendants have been without the State for sufficient time and pursuant to Article 5537, Vernon's Annotated Civil Statutes, Plaintiffs have brought their cause within the specified limitation period." Subsequent to the filing of that amended petition, another party was dismissed and only Janie Torres remained as a plaintiff at the time of trial. The jury found (1) that only the negligence of James Hooper proximately caused the occurrence in question, (3) damages of $405,000.00, (4) that James Hooper was absent from the State of Texas for at least three days from the date of the accident to the time this lawsuit was filed; and (5) that Sawyer Transportation was doing business in the State of Texas at the time of the accident. With prejudgment interest, judgment was entered for $519,712.30, plus interest and cost.

In their first point of error, the Appellants contend the trial court erred in overruling their plea in bar and in entering judgment against them. They argue that the cause of action was barred by the two-year statute of limitations for personal injury. Tex.Civ.Prac. & Rem.Code Ann. sec. 16.003 (Vernon 1986). The pleading showed on the face of the record that suit was not filed within two years. But, Section 16.063 of the Code provides that an absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person's absence. The last day for filing this suit, without any suspension of the statute, was August 1, 1983. Harper v. American Motors Corporation, 672 S.W.2d 44 (Tex.App.--Houston [14th Dist.] 1984, no writ); Payne v. Wittenberg, 239 S.W. 224 (Tex.Civ.App.--Galveston 1922, no writ). If the defendant was out of the state three days between August 1, 1981 and August 1, 1983, the statute did not run or if he was out of the state on August 1, 1983, the last day for filing, the statute would be suspended until his return.

In this case, the burden of proof was on the defendants in the trial court to show the suit was not timely filed. The petition showed that on its face, and the plea in confession and avoidance acknowledged that fact. The pleading alleged an accident on August 1, 1981 and had a file mark of August 4, 1983. The plaintiff sought to avoid that defense by affirmatively pleading Hooper's absence from the state and the provisions of Tex.Rev.Civ.Stat.Ann. art. 5537 (now Tex.Civ.Prac. & Rem.Code Ann. sec. 16.063) in confession and avoidance. The burden of proof on that issue was upon the plaintiff. Wise v. M.E. Anderson, 163 Tex. 608, 359 S.W.2d 876 (1962).

Evidence was offered to show that Hooper was at times out of the state while working as a truck driver. But, there was no evidence before the jury, either by proof of a filing date or by stipulation to establish when suit was filed. The case was not tried until February 1989 and in answering Question No. Four, the jury could just as well have considered whether Hooper was out of the state in 1984, 1985, 1986, 1987 or 1988 in order to determine that he was out of the state three days between the date of the accident in 1981 and the filing of suit which they may have believed occurred in 1989. A question which inquires about an occurrence within a time frame but puts no limit on one end of that frame results in a meaningless answer. Issues may be disregarded as immaterial where they are not grounds for rendering judgment for or against a party. Estate of Lee v. Continental Trailways, 564 S.W.2d 392 (Tex.Civ.App.--Dallas 1978, writ ref'd n.r.e.). By motion for judgment non obstante veredicto, it was asserted that the verdict was ineffective as a matter of law to support any judgment in favor of plaintiff because the suit was barred by limitations and further, that the evidence was not legally sufficient to support the answer to Question No. Four by which the jury purported to find Hooper absent from the state for three days from the date of the accident to the time suit was filed. It was incumbent upon the party with the burden on the issue to request a correct issue which was raised by the evidence and obtain a favorable answer in order to prevail upon that part of the case which would avoid the failure to file within the time proscribed by the statute of limitations. This issue did not do that. The plaintiff should have offered the petition in evidence to show the filing date, offered a stipulation to establish the necessary filing date or the jury question should have inquired about a time period from August 1, 1981 to August 1, 1983. She did neither and did not meet the burden to avoid the effect of the statute of limitations upon her case.

In argument it was urged that the trial court made an implied finding to support the judgment rendered. An implied finding may be made where some elements of a cause of action or a defense are submitted and others are omitted. Tex.R.Civ.P. 279; Allen v. American National Insurance Company, 380 S.W.2d 604 (Tex.1964). But, where the issue consists of only one element there can be no implied finding. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515 (Tex.1988), holding that the discovery rule involves only one element. Likewise, absence from the state only involves one element, and that element was submitted but was defective when one end of the time frame was left open. It will not support the confession and avoidance which was alleged. The jury found that Sawyer Transportation was doing business in Texas at the time of the accident. Under that finding, the statute began to run immediately. There is no finding to prevent the statute from having run on August 1, 1983. Therefore, we must conclude that the cause of action against both the trucking company and the driver were barred when this suit was filed on August 4, 1983. We sustain Point of Error No. One.

It is asserted in the next two points of error that there is no evidence and insufficient evidence to support the answers to Questions Four and Five. Our disposition of the first point of error makes these points of error moot and they are overruled.

The Appellants contend in the next two points of error that the trial court erred in excluding from evidence the major part of the report of Dr. James Boone and then in overruling a motion to withdraw an announcement of ready and a motion for continuance made after the court sustained objections to the medical report. Dr. Boone did a physical evaluation when Janie Torres retired from the school system and qualified for disability payments. He examined her again about five weeks before this case was tried. On January 20, 1989, he wrote an eight page report addressed to counsel for the defendants which included "Clinical Impression," "Permanent Physical Disability," "Discussion," "Old Notes Review," "Treatment Recommendations," "Work Status," "X-Rays," "History," "Past Medical History" and "Examination." In answer to interrogatories on January 20, Dr. Boone was listed as a witness. His report was delivered to counsel for the plaintiff on January 24, 1989 and the case went to trial on February 22, 1989. A motion to strike designation of experts was filed on February 14 and a motion for rehearing was filed on February 22.

When the report was offered in evidence, objection was made that it did not...