Dennis Joslin and Jane Joslin v. Charles Ray Ferrell, Commercial Disposal Service, Inc., and John Heilman

• Court: Court of Appeals of Texas
• Decided: April 26, 2002
• Docket: 06-01-00123-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-01-00123-CV ______________________________

DENNIS JOSLIN AND JANE JOSLIN, Appellants

V.

CHARLES RAY FERRELL, COMMERCIAL DISPOSAL SERVICE, INC., AND JOHN HEILMAN, Appellees

---

On Appeal from the 62nd Judicial District Court Hopkins County, Texas Trial Court No. CV33133

---

Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Ross

O P I N I O N

Dennis Joslin and Jane Joslin appeal the jury's verdict in their suit for negligence against Charles Ferrell, Commercial Disposal Service, Inc., and John Heilman (Appellees). The Joslins sued the Appellees for injuries sustained by Dennis when his motorcycle collided with a tractor trailer owned by Commercial Disposal and driven by Ferrell while making a right turn onto property owned by Heilman. The Joslins appeal the jury's verdict finding none of the Appellees negligent.

The Joslins complained Ferrell operated his vehicle negligently while in the course and scope of his employment for Commercial Disposal. They sued Heilman, the owner of Commercial Disposal and the property onto which Ferrell was turning, contending he was negligent because he knew or should have known that a tractor trailer could not safely, reasonably, and prudently execute a right turn off Highway 19 onto his property.

The points of error now asserted are: 1) the trial court abused its discretion by denying the Joslins' motion for new trial; 2) the jury's findings that the Appellees were not negligent are legally insufficient; and 3) the jury's findings are factually insufficient.

On February 21, 2000, Dennis collided with Ferrell's tractor trailer while Ferrell was making a right turn onto Heilman's property off Highway 19, in Hopkins County. The driveway where Ferrell was turning is approximately 1,200 to 1,500 feet north from the crest of a hill. Ferrell was traveling north and testified he checked his mirrors as he climbed the hill and saw a car behind him, but never saw the motorcycle. In order to execute his "wide right" turn, he turned on his turn signal, slowed his tractor trailer, moved into the southbound oncoming lane of traffic, and then turned his cab right, across the northbound lane of traffic. Dennis' motorcycle collided with Ferrell's tractor trailer in the northbound lane, just behind the tractor cab on the passenger's side. Ferrell saw Dennis through his passenger's window as he was making the turn, just before the collision. Dennis contends that, because Ferrell did not check his mirrors just before turning right, he failed to keep a proper lookout.

We first address the Joslins' second point of error contending the jury's findings that the Appellees were not negligent are legally insufficient. The charge submitted in this case instructed the jury on ordinary negligence. The first question asked: "Did the negligence, if any, of those named below proximately cause the occurrence in question?" The term "negligence" was defined as follows:

"Negligence" means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

The jury answered the question "No" as to Ferrell, Heilman, and Commercial Disposal, and "Yes" as to Dennis.

The Joslins complain the trial court erred in submitting the issue of the Appellees' negligence without a negligence per se instruction. However, they waived this complaint by failing to object to the jury charge. When asked if the plaintiffs had any objections to the jury charge, the Joslins responded, "No objections, Your Honor." See Tex. R. App. P. 33. When no objection is made to a jury instruction, we review the sufficiency of the evidence in light of the charge submitted. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000); see Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex. 2001).

We now determine, in light of the charge submitted, if the Joslins proved their case as a matter of law. Although the Joslins couch their point of error in terms of legal sufficiency, we must determine if they established the Appellees' negligence as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). When the party attacking the legal sufficiency of an adverse finding on an issue on which the party has the burden of proof, the party must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Id.; see Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). In reviewing a "matter of law" challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Dow Chem Co., 46 S.W.3d at 241. If there is no evidence to support the finding, the reviewing court will then examine the entire record to see if the contrary proposition is established as a matter of law. Id.

In this case, we determine if there is evidence to support the jury's finding that the Appellees were not negligent in causing the collision. The evidence is that, as Ferrell ascended the hill, he checked his rearview mirrors and saw no motorcycle, only a car. Just past the crest in the hill, about 1,200 feet from the property entrance, Ferrell engaged his turn signal, moved his truck across the center line, slowed to about three to four miles per hour, and turned his truck right, across the northbound lane of traffic. Ferrell's testimony indicates at the point he turned right, his truck was "middle ways of the yellow line." At the time of the accident, the truck blocked both lanes of traffic.

The only support to which the Joslins direct this Court regarding Ferrell's negligence is their contention he violated two Transportation Code statutes. See Tex. Transp. Code Ann. §§ 545.051, 545.103 (Vernon 1999). Because the Joslins failed to request a jury submission regarding these statutes, we do not consider them. Apart from these alleged statutory violations, the Joslins have not directed this Court to any evidence of Ferrell's negligence or to any evidence regarding Heilman's negligence.

On the other hand, the Appellees point to the deposition testimony of their expert, Ronald Bredemeyer, that Ferrell executed his right turn using good driving practice. This is some evidence to support the jury's verdict. We find the jury's verdict on the issue of negligence regarding the Appellees legally sufficient.

In their third point, the Joslins contend the jury's findings are factually insufficient. When a party attacks the factual sufficiency of an adverse finding on an issue on which the party has the burden of proof, the party must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 242. We must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.; see Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). In doing so, we must "detail the evidence relevant to the issue" and "state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict." Pool, 715 S.W.2d at 635.

The Joslins complain the findings on the issues of negligence, proximate cause, and damages are so against the great weight and preponderance of the evidence as to be manifestly unjust. They contend the great weight and preponderance of the evidence shows that Ferrell failed to keep a proper lookout when making his turn and that this failure proximately caused the collision. Again, because the Joslins failed to request a jury instruction regarding negligence per se or to object to the jury charge given, we review this issue in light of the charge submitted. Zimlich, 29 S.W.3d at 71.

The evidence on which the Joslins relied to show Ferrell's actions were negligent is Ferrell's alleged violation of the two Transportation Code statutes mentioned above. As already stated, because these statutes were not before the jury, we may not consider them. The issue before the jury was one of ordinary negligence, not whether Ferrell violated any statutes. The only other evidence on which the Joslins relied is Heilman's testimony that the accident would not have occurred if Ferrell had not been turning. This assertion, however, in no way shows Ferrell was negligent in the actions he took. The jury's findings are factually sufficient.

Having found the jury's negative findings regarding the Appellees' negligence not against the great weight and preponderance of the evidence, we need not address the Joslins' contention that Dennis was not contributorily negligent. This contention hinged on our having found the jury's finding on the proximate cause question factually insufficient.

The Joslins also contend the jury's finding of zero damages is against the great weight and preponderance of the evidence because the Appellees' attorney stated during his closing argument that Dennis was hurt and incurred approximately $250,000.00 in damages. Because we find the jury properly found none of the Appellees negligent, this point is moot.

Finally, the Joslins contend in their first point of error the trial court abused its discretion in denying their motion for new trial. Courts are given considerable discretion to grant or deny motions for new trial, but this discretion is not without limits. Green v. McAdams, 857 S.W.2d 816, 818 (Tex. App.-Houston [1st Dist.] 1993, no writ). The test for abuse of discretion is not whether, in the opinion of the reviewing court the facts present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate judge does not demonstrate such an abuse. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

The Joslins contend the trial court abused its discretion in denying their motion for new trial because the evidence was legally and factually insufficient to support the jury's negative findings as to each of the Appellees. Having determined the evidence was both legally and factually sufficient to support the jury's findings, we find the trial court did not abuse its discretion. The purpose of a new trial is to correct trial errors. Cantu v. Martin, 934 S.W.2d 859, 861 (Tex. App.-Corpus Christi 1996, no writ). The Joslins failed to show any errors that require correction. This point is overruled.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: April 4, 2002

Date Decided: April 26, 2002

Do Not Publish