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Terrace v. City of Texarkana6/21/1999
ormance). Gabourel continued to call Diesel Fuel for repair of the engine problems in question, but Diesel Fuel never discovered or corrected the underlying problem. The problem became so severe that in May 1988, the prior captain of the shrimp boat, George Haylock, quit out of frustration with the substandard performance, and Gabourel became captain of his shrimp boat. "Finally, in May 1989, the engine again completely failed. Another repair company then opened the engine to discover for the first time that the problems had been caused by a piece of wood in the oil strainer. This problem could not have been discovered without taking the engine apart, which had not occurred since February of 1988 when Diesel Fuel had last overhauled the engine." Id. at 610-11.
It is apparent from the Corpus Christi court's application of the discovery rule to these facts that it did not construe the rule to require that the injury be impossible to discover.
TWU cites Johnson v. Abbey, 737 S.W.2d 68, 69 (Tex. App.-Houston [14th Dist. 1987, no writ), for the proposition that the discovery rule is invoked only when a legal remedy otherwise would be "unavailable to the injured party before he can know that he is injured." This quote by the Houston court is from Hays v. Hall, 488 S.W.2d 412, 414 (Tex. 1972), where the supreme court reversed the dismissal of a malpractice case based on limitations and held the discovery rule applied where a patient is fertile after a vasectomy. Hays is in contrast to the case that was under consideration by the Houston court where the Houston court held that the discovery rule does not apply in a suit by a physician against a nurse anesthetist for falsification of anesthesia reports where the physician complainant had opportunity in an earlier malpractice case against him to test the accuracy of those reports. The Houston court held that the discovery rule did not apply because, unlike the situation in Hays, the physician's discovery of his alleged injury was not before he could know that he was injured. The earlier medical malpractice action provided him the opportunity to learn of his injury.
The case of Stewart v. Stanley Bryan Oldsmobile-Buick-Pontiac-GMC, Inc., 883 S.W.2d 273 (Tex. App.-Corpus Christi 1994, writ denied), was an appeal from a summary judgment granted in an action arising from an automobile collision. Appellant alleged that she could not have discovered her injury until after the statute of limitations had run. In holding that the discovery rule did not apply, the Corpus Christi court wrote:
"Appellant knew she had been injured in the collision immediately, although she did not determine the full extent of her injuries until much later. The injury causing event was not hidden from her. . . . Appellant is required to . . . determine the extent of her injuries before the limitations period expires." Id. at 274-75.
It is important to note that Stewart was involved in an automobile collision to put her on notice to investigate and determine the extent of her injuries. In the instant case, however, the only summary judgment evidence to which TWU directs this Court is TTL's own affidavit from Douglas W. Hunt described above. That affidavit however, merely describes when TTL actually discovered the nature of its injury and the circumstances surrounding that discovery. It says nothing about when TTL should have been put on notice to determine the extent of its injuries before the limitations period expired. Although TWU's statement that this affidavit demonstrates that "TTL could have discovered the discrepancy at any time after the meters were installed by simply conducting a routine check" may be a correct one, such statement does n
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