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State Farm Fire and Casualty Co. v. Owen3/12/1999
d non-disclosure is undergoing a change and ... it would seem that the object of the law in these cases should be to impose on parties to the transaction a duty to speak whenever Justice, equity, and fair dealing demand it. ... The question is one of fair conduct, just as negligence is a question of fair conduct. Since, therefore, the question is of that nature it would be impossible, it is believed, to arrive at a precept which could be used with mathematical exactness to dispose of all the situations that might arise. We can only hope to apply some standard which will give a measure of certainty, and, at the same time, a measure of Justice. ... In this connection it would seem that the conception of negligence as the care of the ordinary prudent man would be of benefit. It has been said that the standard man in his conduct on the question of negligence evaluates interests in accordance with the sentiment of the community. Why not employ the standard man in this connection? This would be, not the ordinary man's views as to the ethical quality of the silence, but what the man of ordinary moral sensibilities would have done; would he have disclosed the information or would he have remained silent? ... Society requires or should require of a person a judgment on moral questions which represents the sentiment of the community, and the fictitious standard man is set up with that judgment." 15 Tex. L. Rev. 1, 31-33.
Accordingly, because I disagree with the majority's blanket rule against the jury's ever making the determination, in a fraudulent suppression case, whether a duty to disclose existed, I concur in the result only.
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