Kelsey-Seybold Clinic v. Maclay

• Decision Date: 28 April 1971
• Docket Number: KELSEY-SEYBOLD,No. B--2269,B--2269
• Parties: CLINIC, Petitioner, v. John Dale MACLAY, Respondent.
• Court: Texas Supreme Court

Page 716

466 S.W.2d 716

KELSEY-SEYBOLD CLINIC, Petitioner, v. John Dale MACLAY, Respondent.

No. B--2269.

Supreme Court of Texas.

April 28, 1971.

Rehearing Denied June 2, 1971.

Fulbright, Crooker, Freeman, Bates & Jaworski, Dan Matthews, Newton Gresham and Robert M. Welch, Jr., Houston, for petitioner.

Austin, Dabney & Northrop, Robert Dabney, Jr., Houston, for respondent.

WALKER, Justice.

This is a suit for alienation of affections in which the trial court rendered summary judgment for one of the defendants, Kelsey-Seybold Clinic, a medical partnership. The question to be decided is whether the Clinic established conclusively that it is not liable for the damages alleged to have been caused by the acts of one of the partners.

The suit was brought by John Dale Maclay against Dr. Earl J. Brewer, Jr., M.D. and the Clinic. After sustaining the Clinic's motion for summary judgment, the trial court ordered that this part of the case be severed from the suit against Dr. Brewer. Plaintiff appealed to the Court of Civil Appeals, which reversed the trial court's judgment in favor of the Clinic and remanded the cause for trial. 456 S.W.2d 229.

Our statement of the pleadings and summary judgment proofs is taken largely from the opinion of the Court of Civil Appeals. Plaintiff alleged that Dr. Brewer and the Clinic had treated him, his wife and their children for several years; that Dr. Brewer, who is a pediatrician and one of the partners in the Clinic, was the doctor to whom his wife had taken their children; that beginning in late 1966, Dr. Brewer conceived and entered into a scheme to alienate the affections of plaintiff's wife, Mrs. Maria Maclay; that he showered his attentions and gifts upon her until April or May, 1967, when her affections were alienated as a direct result of his actions, causing her to separate from plaintiff on or about July 25, 1967.

Plaintiff further alleged that Dr. Brewer's actions designed to alienate Mrs. Maclay's affections occurred while he was acting as a medical doctor for plaintiff's family and in the course and scope of his employment as a partner in the Clinic; that various acts of undue familiarity occurred both on and off the premises of the Clinic; that prior to April, 1967, the Clinic, through Dr. Mavis Kelsey, one of the senior partners, had knowledge of Dr. Brewer's actions; that at the time this knowledge was acquired, the Clinic was providing medical treatment for plaintiff and his entire family; and that 'the partnership approved of, consented to, and ratified and condoned such conduct of its partner, Brewer, and refused to come to the aid of your plaintiff or in any way attempt to halt or disapprove the actions of Brewer. * * *' Plaintiff prayed for the recovery of damages, both actual and exemplary, from Dr. Brewer and the Clinic, jointly and severally.

The summary judgment proofs consist of two affidavits and three depositions. Two of the depositions contain nothing that is relevant to this appeal. The third deposition is that of Dr. Mavis Kelsey, who is Chairman of Staff for the Clinic. Dr. Kelsey stated that he had treated plaintiff ten or fifteen years before and that other doctors in the Clinic had treated plaintiff, his wife and children since then. At some time in the Spring of 1967, plaintiff complained to Dr. Kelsey that Dr. Brewer was having an affair with Mrs. Maclay. According to Dr. Kelsey's recollection of this conversation, plaintiff stated that he and his wife had separated. At about the same time Dr. Kelsey received a telephone call from Mrs. Maclay's uncle, who inquired what Dr. Kelsey 'knew about this affair.' Two or three weeks later plaintiff telephoned Dr. Kelsey a second time.

It was Dr. Kelsey's impression that the purpose of plaintiff's two telephone calls was to seek sympathy. Plaintiff did not ask him to do anything, and he had done nothing. He did not talk with Dr. Brewer about the matter until after this suit was filed. The witness did not believe that anything improper had occurred at the Clinic. If anyone had known of conduct such as that alleged by plaintiff, the partners 'wouldn't put up with that.' Dr. Kelsey also stated that the Clinic had not adopted a policy of intentionally alienating Mrs. Maclay's affections. A nurse is always present when a female patient is examined or treated by a doctor in the Clinic, but Dr. Kelsey felt that it would be impossible to keep up with the private lives, outside the Clinic, of over fifty doctors.

Plaintiff countered with an affidavit in which he stated that in his telephone conversation with Dr. Kelsey, he inquired whether the latter was aware that Dr. Brewer had a romantic interest or involvement with his wife. According to the affidavit, Dr. Kelsey replied that he was aware of the matter and had talked with Mrs. Maclay's uncle about it. The Clinic filed an affidavit by all members of its executive committee, except Dr. Brewer, stating that the committee is charged with responsibility for setting policy for the partnership, that the business of the partnership is that of operating a medical clinic, that Dr. Brewer was not authorized by the partnership at any time to do any act which might result in the alienation of Mrs. Maclay's affections from her husband, and that the partnership had done no act with the purpose, intent or design to alienate her affections.

As pointed out by the Court of Civil Appeals, the ultimate question is whether the summary judgment proofs conclusively negate at least one of the essential elements of plaintiff's cause of action. Gibbs v. General Motors Corp., Tex.Sup., 450 S.W.2d 827. Here the Clinic concedes, for purposes of the summary judgment and this appeal: (1) that Dr. Brewer was a partner in the Clinic; (2) that the members of the Maclay family were patients of the Clinic; (3) that Dr. Brewer alienated Mrs. Maclay's affections; and (4) that plaintiff informed Dr. Kelsey in about April, 1967, that an improper relationship existed between Dr. Brewer and Mrs. Maclay. It insists, however, that the record establishes as a matter of law that the Clinic is not liable for the damages alleged to have resulted from Dr. Brewer's acts.

The bases of liability alleged in the petition are: (1) that Dr. Brewer's wrongful conduct was in the course and scope of the partnership business and was approved, consented to, ratified and condoned by the Clinic; and (2) that the Clinic, after notice of the alleged relationship between Dr. Brewer and Mrs. Maclay, failed to take any action. Plaintiff is thus relying upon the vicarious or partnership liability of the Clinic for the acts of one of the partners and also its liability for breach of a duty owing by the Clinic when it learned of Dr. Brewer's relationship with Mrs. Maclay.

On the question of vicarious liability, plaintiff argues that the affidavit of the members of the Clinic's executive committee will not support a summary judgment since it comes from interested parties and contains mere conclusions. No attempt will be made to consider this contention, because the judgment of the Court of Civil Appeals must be affirmed for other reasons that will be discussed below. We are unwilling to believe that plaintiff seriously expects to prove in a conventional trial that the acts alleged to have been committed by Dr. Brewer were in the course and scope of the partnership business or were either authorized or ratified by the Clinic. Rather than concern ourselves about possible deficiencies in the affidavit filed by the Clinic, we assume for the purpose of this opinion that Dr. Brewer was not acting in the ordinary course of the Clinic's business and that his conduct was neither authorized nor ratified by the partnership. This will enable us to reach questions that may well arise at the trial of the case.

The Court of Civil Appeals reasoned that the summary judgment was improper because the Clinic had not conclusively negated consent on its part to the alleged wrongful conduct of Dr. Brewer. In reaching this conclusion, it relied on our opinion in K & G Oil Tool & Service Co. v. G & G Fishing Tool Service, 158 Tex. 594, 314 S.W.2d 782, where it was stated that:

'A non-participating partner is ordinarily not personally liable for the wrongful, tortious or criminal acts of the acting partner unless such acts are within the scope of the partnership's business or were consented to, authorized, ratified or adopted by the non-participating partner.'

There was no question of consent in K & G, and it was held that the non-participating partner was not liable. Similar statements have been made by other courts in connection with similar holdings. See Schloss v. Silverman, 172 Md. 632, 192 A. 343; Vrabel v. Acri, 156 Ohio St. 467, 103 N.E.2d 564, 30 A.L.R.2d 853. Two courts apparently entertain the view that mere tacit consent is enough to make the non-participating partner liable for the wilful tort of the acting partner outside the scope of the partnership business. Polis v. Heizmann, 276 Pa. 315, 120 A. 269; Dulchevsky v. Solomon, 136 Wash. 645, 241 P. 19. Their conclusion in this respect appears to be due, at least in part, to an erroneous interpretation of the opinion in Williams v. F. & W. Grand Five, Ten and Twenty-five Cent Stores, 273 Pa. 131, 116 A. 652. The plaintiff there was accused of stealing a tooth brush. While being interrogated in defendant's store, she was assaulted by the operative of a private detective agency employed by defendant to guard the store. The trial court rendered judgment on the verdict in favor of the plaintiff, and it was contended on appeal that defendant could not be responsible for an assault committed by the employee of an independent detective agency. The appellate court pointed out that the jury had been instructed to find for the plaintiff if they believed that the manager of the store was present and participated in the acts or permitted the operative to insult and assault the plaintiff w...