Thomas v. St. Joseph Hospital, 17891

Decision Date30 April 1981
Docket NumberNo. 17891,17891
Citation618 S.W.2d 791
PartiesJosephine E. THOMAS, Appellant, v. ST. JOSEPH HOSPITAL et al., Appellees. (1st Dist.)
CourtTexas Court of Appeals

John Milutin, K. Michael Mayes, Harvill & Hardy, Houston, for appellant.

Roger A. Rider, Richard Sheehy, Butler, Binion, Rice, Cook & Knapp, Tom Lorance, Wilton Chalker, Lorance, Thompson & Wittig, Houston, for appellees.

Before COLEMAN, C. J., and PEDEN and SMITH, JJ.

PEDEN, Justice.

Josephine E. Thomas appeals from a take-nothing judgment rendered in a wrongful death and survivor's suit brought in strict tort liability, negligence, and breach of warranty against St. Joseph Hospital and Whitehouse Company. Mrs. Thomas's husband, Burrell Thomas, died in St. Joseph Hospital after suffering burns over a substantial portion of his body when he dropped a lighted match and ignited his hospital gown. The trial judge directed a verdict in favor of Whitehouse, a supplier of hospital gowns, and third-party defendants M. Lowenstein and Will Ross, Inc. The jury failed to find that St. Joseph had been negligent in caring for Mr. Thomas but found damages of $46,500. The appellant's position is that the trial court erred 1) in granting a directed verdict in favor of defendant Whitehouse, since there was evidence that Whitehouse had manufactured the hospital gown, 2) in excluding certain portions of the testimony of plaintiff's expert witness, Dr. Douglas Muster, 3) in refusing to submit to the jury nine special issues based on a strict liability theory, 4) in refusing to instruct the jury that destruction of relevant evidence raises a presumption that such evidence would have been unfavorable to the party destroying it, and 5) in overruling the plaintiff's motion for mistrial, based on the treating physician's statements that the deceased assumed his own risk by smoking in his room. We reverse the trial court's judgment in part and remand it to the trial court for a new trial on the strict liability question; in all other respects, we affirm.

Mrs. Thomas first complains that the trial court erred in granting a directed verdict for the Whitehouse Company because there was more than a scintilla of evidence that it manufactured the gown in question. We overrule these points. The plaintiff had the burden of establishing who made the gown in question under the theories of strict liability, breach of warranty, or negligence. It is clear that the gown was furnished to Mr. Thomas by the hospital and that a charge for it was passed on to him as part of the overhead expense. The only evidence admitted to show who made it was 1) the response filed by Whitehouse to a special appearance filed by a third party defendant, its supplier of cloth, M. Lowenstein, 2) St. Joseph Hospital's answers to interrogatories, including the statement that St. Joseph Hospital distributed its gowns randomly, and 3) Defendant's Exhibits 1-4 which indicated that the other third party defendant, Will Ross, Inc., manufactured 85% of the hospital gowns used by St. Joseph Hospital in the relevant time period. Defendant's Exhibits 1-4 show that Will Ross supplied St. Joseph with 1432 dozen hospital gowns as opposed to 65 dozen supplied by Whitehouse Company. Neither of the nurses who testified nor the treating physician was able to identify the manufacturer of the gown, so unless the response filed by Whitehouse was a judicial admission, the jury would have had to base its choice of which of the two possible companies manufactured the gown on mere speculation and conjecture.

When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is, in legal effect, no evidence, and will not support a verdict or judgment.

Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex.L.Rev. 362-63 (1960). See Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854 (Tex.1968); Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898); Sharp v. Chrysler Corp., 432 S.W.2d 131 (Tex.Civ.App.1968, writ ref'd n.r.e.).

A judicial admission is a deliberate, clear, and unequivocal formal act made by a party, which if true and not modified or explained by him, would defeat his right of recovery or defense; the principle should be applied with caution. Esteve Cotton Co. v. Hancock, 539 S.W.2d 145, 157 (Tex.Civ.App.1976, writ ref'd n.r.e.); see also Griffin v. Superior Insurance Co., 161 Tex. 195, 338 S.W.2d 415, 418-19 (1960). Statements made by a party or his attorney in the course of judicial proceedings which are not based on personal knowledge or are made by mistake or based upon a mistaken belief of the facts are not considered judicial admissions. Gevinson v. Manhattan Construction Co. of Oklahoma, 449 S.W.2d 458, 460 (Tex.1969); 45 Tex.Jur.2d Pleadings § 188; 59 A.L.R.2d 516, 512.

In our case, Mrs. Thomas added Whitehouse Company as a defendant in 1975. St. Joseph Hospital stated in an answer to interrogatories that only Whitehouse Company had supplied gowns to the hospital during the relevant time period. This information was peculiarly within the knowledge of St. Joseph Hospital to the exclusion of Whitehouse. In January of 1977, Whitehouse filed a third-party action against Lowenstein, its supplier, and when the supplier filed a special appearance and answer, Whitehouse responded, stating that it had manufactured the gown. This statement is what the appellant claims is a judicial admission. St. Joseph amended its interrogatory answers soon after that to state that Will Ross, Inc., also had supplied gowns to it during the relevant period; Whitehouse then filed a supplementary third-party action against Will Ross, Inc., in September of 1977, in which it specifically abandoned its earlier admission.

The initial response by Whitehouse was based upon erroneous information furnished by St. Joseph; it was amended and modified to reflect the correct facts. It did not constitute a judicial admission.

In points of error 2-27 the appellant contends that the trial court erred in excluding an exhibit and certain portions of the testimony of Douglas Muster, Ph.D., plaintiff's expert witness. The basis for the objections leveled at his testimony generally was that Muster was not qualified to render opinions regarding the effects of various flame retardants, the relationship between hospital environments and the effects of flammability, and the safe design of hospital garments.

The trial judge has wide discretion in determining who is qualified as an expert in a particular area, and his determination will be overturned only on a clear showing of abuse, Rhinetubes, Inc. v. Norddeutscher Lloyd, 335 S.W.2d 269 (Tex.Civ.App.1960, writ ref'd n.r.e.); 2 Ray, Texas Practice, Law of Evidence § 1401 (1980); that same discretion applies to the trial court's rulings on the propriety of hypothetical questions, Foreman v. Texas Employers' Insurance Association, 150 Tex. 468, 241 S.W.2d 977 (1951); Highway Insurance Underwriters v. Matthews, 246 S.W.2d 214 (Tex.Civ.App.1952, writ ref'd n.r.e.). To be entitled to reversal, the plaintiff must show that the hypothetical questions were proper and that Dr. Muster was so qualified in the areas of excluded testimony that it was an abuse of discretion for the trial court to exclude them; in addition Mrs. Thomas must show that the error, if any, was harmful.

Dr. Muster is a professor of mechanical engineering at the University of Houston; he was department chairman for ten years and currently has the Brown & Root chair. He has not had any college courses in fire protection. Mechanical engineering includes subjects involving thermal reaction combustion processes and thermodynamics. Five or six years ago he was the professor responsible for a 20-student college competition project related to fire prevention; in the course of this project he visited a large insurance company exhibition concerning fire prevention and flame retardation in textiles, wood, and plastics. He has received information from the National Fire Protection Association and has read a book about the Beverly Hills Supper Club fire in Kentucky. He knows that the National Fire Protection Association Handbook is available to anyone in the country.

Dr. Muster is consulted by oil firms around the world, but he did not show that any of that consulting involved fire protection or related fields. He is aware of a certification program concerning fire protection and safety, but it is clear that he is not certified nor does he know what qualifications are required for certification. When asked to define and discuss the term flammability, he read from Random House and Webster's Dictionaries the definitions contained therein and contrasted them with the National Fire Protection Handbook. He has demonstrated no expertise in the medical field or in the field of hospital safety.

Although we would have been inclined to allow Dr. Muster to testify more fully than the trial judge did, we cannot say he abused his discretion in this regard.

A reading of Dr. Muster's entire testimony reveals that the excluded portion is often repetitious and cumulative; he was allowed to testify about flammability, flame retardants, the burning of materials, the effect of a flame retardant on safety, and the fact that it was more desirable for a gown to be flame retardant than not. He also was allowed to testify:

The gown being flammable the way it was and the requirement that the cotton, of itself, only requires seventeen per cent oxygen in the air to support combustion, there is no question in my mind that the gown, as the nurse saw it, described as being a rather large flame like it was doused in gasoline, etc., that this could well be within the range of what you would expect in the situation involved here; that the flammability had contributed materially to the accident, being as severe as it...

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