Qantel Business Systems, Inc. v. Custom Controls Co. ( 1988 )

GONZALEZ, Justice,

concurring.

I concur and applaud that we have finally discarded the “Lorino rule.” This rule has its genesis in the court of civil appeals’ opinion on motion for rehearing in Lorino v. Crawford Packing Co., 169 S.W.2d 235 (Tex.Civ.App.—Galveston), aff'd 142 Tex. 51, 175 S.W.2d 410 (1943). Under this rule, in a non-jury case, after a plaintiff rests, a trial judge who is unpersuaded by the plaintiff’s evidence has to dutifully listen to the defendant’s portion of the case before making a determination on the merits of the cause of action. On appeal, a motion for judgment is treated identically to a motion for directed verdict in a jury trial. See Charter Int’l Oil Co. v. Tolson Oil Co., 720 S.W.2d 165,167 (Tex.App.—Austin 1986 no writ) (citing Meyers v. Ford Motor Credit Co., 619 S.W.2d 572, 573 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ); R.W.M. v. J.C.M., 684 S.W.2d 746, 751-53 (Tex.App.—Corpus Christi 1984, writ ref’d n.r.e.) (Gonzalez, J., dissenting); McDaniel v. Carruth, 637 S.W.2d 498, 504 (Tex.App.—Corpus Christi 1982, no writ); Guthrie v. Ray, 556 S.W.2d 589, 591 (Tex.Civ.App.—Dallas 1977, no writ).

I write separately to make it abundantly clear that we are abandoning the “Lorino rule.” The court today recognizes that there is an inherent difference between a motion for judgment in a bench trial and a motion for directed verdict in a jury trial. In a bench trial, the judge serves the dual capacity of fact finder and magistrate, occupying the same relation to the facts as a jury in a jury trial. The judge has the power and the duty to weigh the evidence, draw inferences and make reasonable deductions from the evidence and to believe or disbelieve all or part of it, just as a jury does. In short, after a plaintiff rests, on motion for judgment by the defendant, the judge has the power to decide not only whether the evidence presented raises a fact issue, but he or she is also empowered to make a determination on the merits. The granting of a defendant’s motion for judgment simply means that the plaintiff has not met his or her burden of proof.

I am pleased that the court has finally discarded this illogical rule. It has been blindly followed by some while severely criticized by others. Abolition of this archaic rule will result in better use of our judicial resources and prevent unnecessary expense to the parties.

CULVER, J., joins in this opinion.