Rozell v. Kaye, Civ. A. No. 1998.
| Decision Date | 22 August 1961 |
| Docket Number | Civ. A. No. 1998. |
| Parties | George Joseph ROZELL v. John KAYE, D.O. |
| Court | U.S. District Court — Southern District of Texas |
Bedford D. Edwards, Waco, Tex., and Wade & Howard and Virgil Howard, Corpus Christi, Tex., for plaintiff.
Lewright, Dyer & Redford, S. E. Dyer and W. N. Woolsey, Corpus Christi, Tex., for defendant.
This action is before the Court on defendant's motion to quash service and to dismiss.
This action was originally filed by the plaintiff, George Joseph Rozell, in the 156th District Court of San Patricio County, Texas, and was removed by the defendant to this Court.
Contemporaneously with such removal, defendant filed his motion to quash service and to dismiss, urging the Court that service of process upon him was improperly had.
The plaintiff had sought to obtain service on the defendant by nonresident notice.
The defendant by affidavit stated that at the time he was personally served in the State of Florida, he was a resident of such State and had been a resident of such State since September, 1959. This fact remains undisputed by the plaintiff.
The plaintiff conceded that said motion to quash, when filed, was good because the nonresident notice given to defendant was insufficient for the Court to acquire jurisdiction of the person of the defendant. The plaintiff, however, took steps to correct the insufficiency of the process by having the Secretary of the State of Texas served in accordance with the provisions of Article 2031b, Vernon's Annotated Civil Statutes of Texas.1
The defendant then again moved that this attempted substitute service of process through the Secretary of State be quashed and the cause dismissed on the ground that Article 2031b, Vernon's Annotated Civil Statutes, would not apply retroactively so as to enable the plaintiff to secure under Article 2031b service of process on this defendant with regard to a cause of action accruing prior to the effective date of the statute.
Article 2031b was enacted by the Fifty-sixth Texas Legislature and became effective on August 10, 1959, ninety days after adjournment of the Legislature that passed the same.
Plaintiff's original petition showed that plaintiff's cause of action, if any, against defendant arose or commenced on January 24, 1959, at which time the plaintiff alleges that the defendant committed the malpractice on him while attempting to treat plaintiff's leg which had been broken in an auto accident on that same day.
It, therefore, has to be conceded that the pertinent provisions of Article 2031b were not in effect at the time of the alleged malpractice on the part of the defendant.
The plaintiff then asked leave of the Court to file an amended complaint, which leave was granted by the Court.
The plaintiff in said amended complaint, with the apparent intent to get around the question of Article 2031b having to be applied retroactively, stated that the defendant had fraudulently concealed from the plaintiff the plaintiff's true condition, and that the plaintiff did not, and could not have discovered this condition until after October 1, 1959.
The plaintiff contends that the fraudulent concealment of plaintiff's condition by the defendant constituted a tort or a separate cause of action from the negligent treatment received on January 24, 1959, and that this separate tort continued until a time after the effective date of Article 2031b, and after the time of defendant's removal to Florida.
The defendant maintains, and rightly so, that the Legislature of the State of Texas did not intend, nor did it express in appropriate language, that such statute applied retroactively to a cause of action arising prior to the enactment and the effective date of such statute.
The verbs used throughout Article 2031b, and particularly in Section 6 thereof, are all verbs of "futurity". All of said language is prospective.
The defendant further argues that the Legislature did not intend Article 2031b to be retroactive for the reason that had such been the intent and the effect of the statute, it would be unconstitutional.
The Texas Constitution, in Article I, Section 16, Vernon's Ann.St. provides:
"No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligations of contracts, shall be made." (Emphasis supplied.)
Our Texas Constitution, unlike the Constitution of the United States, expressly prohibits the enactment of retroactive laws and it has long been recognized that this provision of our State Constitution places a limitation upon the power of the Legislature beyond other limitations found in the...
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