Guzman v. Guajardo

761 S.W.2d 506, 1988 Tex. App. LEXIS 2892, 1988 WL 124072

• Court: Court of Appeals of Texas
• Decided: November 23, 1988
• Docket: 13-87-273-CV
• Status: Published

Opinions

OPINION

DORSEY, Justice.

Eduardo Guajardo and Lydia Castro, ap-pellees, brought a wrongful death action¹ against appellant, Jose Guzman, and his employer, Ed Payne Motor Company, Inc., and Payne Farms. Appellees alleged that appellant, while acting in the course and scope of his employment with Payne, was negligent in the operation of a motor vehicle and proximately caused the death of their seven-year-old son, Wally.

At the conclusion of the plaintiffs’/appel-lees’ case-in-chief, the court issued a take-nothing directed verdict in favor of Ed Payne Motor Company and Payne Farms. Following the completion of the evidence, the jury found that appellant caused Wally Castro’s death by negligently 1) driving at an excessive speed, 2) failing to keep a proper lookout, and 3) failing to take proper evasive action. The jury awarded appel-lees various damages totaling $1,570,-000.00. Appellant challenges the sufficiency of the evidence by fourteen points of error. We affirm.

By his first through fourth points, appellant contends there is no evidence or, in the alternative, insufficient evidence to support the jury’s negligence and proximate cause findings. In considering a “no evidence”, “insufficient evidence” or “against the great weight and preponderance of the evidence” point of error, we will follow the well-established test set forth in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986); Dyson v. Olin Corp., 692 S.W.2d 456 (Tex.1985); Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965); Allied Finance Co. v. Garza, 626 S.W.2d 120 (Tex.App—Corpus Christi 1981, writ ref’d n.r.e.); and Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960). In Pool, the Texas Supreme Court held that an appellate court must “clearly state why the jury’s finding is so factually insufficient or is so against the great weight and preponderance of the evidence as to be manifestly unjust; why it shocks the conscience.” Pool, 715 S.W.2d at 635.

At trial, appellant testified that on September 3, 1985, he was traveling north on Texas Avenue, a two-lane road with paved shoulders located in Weslaco, Texas. The speed limit was 45 miles per hour. While driving “30 to 35 miles” per hour, appellant pulled over from the traffic lane on to the shoulder in order to let another vehicle pass. At that point, he noticed three small children, two of whom were on bicycles, standing between the lanes of traffic. While he initially stated that the children were “about a block away” when he first sighted them, he later admitted that he “could not figure distance.” The two boys on bicycles started to cross the road in an easterly direction, but then went back toward the median. The third boy, Wally Castro, proceeded to run towards the eastern shoulder of the road. Appellant stated that Wally was “very close” to his truck when he began running. He testified he applied his brakes and skidded, but could not avoid striking the child.

Weslaco Police Officer Medaro Pena was the first to arrive at the scene of the accident. According to his measurements, the right skid mark was 36 feet long and the left skid mark was 26 feet long. Both were slanted in a northeasterly direction. Pena stated that appellant told him that the impact had occurred at a point very close to the northern end of the right skid mark, and that Wally’s body had been found behind the truck approximately 13 feet from the edge of the shoulder. Pena’s investigation also revealed that appellant’s truck traveled another 62 feet forward after striking the child. Pena expressed the opinion that appellant was not traveling in excess of the 45 mile per hour speed limit at the time of the accident.

Sylvia Anciso was a passenger in the car traveling directly behind appellant’s truck at about “35 to 40” miles per hour. She testified that the truck appeared to be going “about the same” speed. Upon seeing the three children, she and her mother-in-law, who was also a passenger in the car, told the driver, Miguel Anciso, to slow down. Just before the accident, appellant’s truck slowed down and went “toward the shoulder” as another car passed it. Mrs. Anciso estimated that the boy was two car lengths from the truck when he darted across the road. After appellant hit his brakes, Anciso saw the truck skid and turn slightly sideways as it struck the child. In her opinion, appellant “did everything he could” to avoid the accident.

The videotaped deposition of Miguel An-ciso was also played for the jury. Mr. Anciso essentially corroborated his wife’s testimony, although he estimated that Wally was only 15 to 20 feet in front of Appellant’s truck when he began to cross Texas Avenue. He also added that he witnessed Wally’s body pass underneath the truck after impact.

The only other eyewitness was sixteen-year-old David Garcia, who testified that Wally was “about a car length” from the truck when he ran in front of it. Garcia was 30 yards from the accident when he saw it occur.

The testimony of accident reconstructionist Tony Cordoba formed the crux of appel-lees’ case. Cordoba stated that based on the skid mark measurements, the location of the point of impact (as told to him by Officer Pena), and the distance which the truck traveled after impact, he calculated that appellant was driving 41.55 miles per hour before he applied his brakes. Taking into account appellant’s speed, reaction time, lag time, and the length of the skid, Cordoba also estimated that appellant was 87.82 feet away from Wally when he first realized he would have to try to avoid a collision. Cordoba concluded that appellant had sufficient time in which he could have effectively taken evasive action by swerving his vehicle sharply to the right so as to avoid striking Wally.

Appellant rebutted Cordoba’s testimony by calling to the stand McAllen Police Officer Reynaldo Lopez. In Lopez’s opinion, Cordoba’s estimation of 87.82 feet was too high because it assumed that appellant’s truck was equipped with radial tires when it actually had bias ply tires; bias ply tires, according to Lopez, have a lower “coefficient of friction” which would call for a final distance under 87 feet. Lopez also pointed out that the angle of the skid marks indicates that appellant did, in fact, steer his truck to the right before braking. Lopez calculated appellant’s speed at “31 to 32 miles per hour.”

Negligence requires the presence of three elements: 1) a duty on the part of one person to another; 2) a breach of that duty; and 3) harm to the person to whom the duty is owed as a proximate result of the breach. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975).

The jury’s three-part negligence finding is based first on the conclusion that appellant was “driving his vehicle at a greater rate of speed than a person using ordinary care would have driven” under the circumstances, i.e., while children were standing in the middle of a busy, two-lane highway. The evidence of speed was elicited from appellant (“30 to 35 miles per hour”), Reynaldo Lopez (“31 to 32 miles per hour”), Sylvia Anciso (“35 to 40 miles per hour”), and Tony Cordoba (41.55 miles per hour). Regardless of which witness the jury believed, we are unable to conclude that the findings of excessive speed and proximate cause are manifestly unjust in view of the dangerous circumstances in which appellant found himself immediately prior to the accident.

The jury also found appellant did not “keep such a lookout as a person using ordinary care would have kept” and failed to “swerve or turn his vehicle to the right before the occurrence in question..”

Appellant testified initially that he was “about a block away” from the children when he first saw them in the center of the road. Counsel then read portions of appellant’s deposition which revealed that he had previously stated that the children were “half a block” or “about 50 feet” away when he sighted them. Appellant later admitted he had trouble figuring distances. The jury could have concluded from this inconsistent testimony that appellant was not keeping a proper lookout.

On the issue of evasive action, the length of the skid marks and the location of the impact point indicate appellant had at least 36 feet in which to maneuver his truck out of Wally’s path. Experts on both sides testified that the angle of the skid marks shows that appellant steered his vehicle slightly to the right before applying his brakes. However, given that there were no guard rails on the shoulder of the road, the jury was justified in finding that appellant’s failure to sharply swerve his truck to the right was negligence and was a proximate cause of Wally’s death. We overrule points one, two, three and four.

Appellant argues by his fifth point of error that the jury’s failure to find that Wally Castro was negligent, in response to Special Issue No. 5, was so against the great weight and preponderance of the evidence as to be manifestly unjust.

A negative answer to a special issue amounts to nothing more than a failure or refusal by the jury to find from a preponderance of the evidence the facts which the proponent sought to prove. Ergon Inc., v. Dean, 649 S.W.2d 772, 779 (Tex.App.—Austin 1983, no writ). This Court has the authority to review a jury’s “failure to find” in the same manner in which it may review a jury’s findings. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988).

Where the negligence of a child above the age of five is at issue, the child’s negligence is to be judged by a standard of conduct applicable to a child of the same age and experience and not by an adult standard. Yarborough v. Berner, 467 S.W.2d 188, 190 (Tex.1971); MacConnell v. Hill, 569 S.W.2d 524, 526 (Tex.Civ.App.— Corpus Christi 1978, no writ).

Appellant points to the testimony of Wally Castro’s grandmother, Ofelia, and mother, Lydia, in support of his contention that the failure to find the child negligent is against the preponderance of the evidence. Ofelia Castro stated that on the day of the accident, she told her grandson to stay off of Texas Avenue and to come straight home via an alley. Lydia Castro testified that she had previously taught Wally the dangers of crossing streets and the importance of “keeping an eye out for cars.”

However, Sylvia Anciso testified on direct examination that Wally’s two companions appeared to be “about eight or nine” years of age. She further stated that these two older boys, who were “straddling” bicycles, made a “motion like they were going to cross” Texas Avenue. The two boys started to cross and then “jerked back,” but Wally, who had been hanging onto the back of one of the bicycles, “just kept going.” Mrs. Anciso’s testimony was uncontroverted in this regard.

It thus appears that the jury’s “failure to find” negligence could have been based on the fact that Wally, a seven-year-old, was following the lead of his older companions and yet was unable to react as quickly as they did when appellant’s truck began to approach. We are unwilling to conclude that the jury’s response to Special Issue No. 5 is against the great weight and preponderance of the evidence. Point five is overruled.

Points ten through thirteen challenge the sufficiency of the evidence supporting the jury’s award to Lydia Castro of $100,000.00 for past loss of society, $300,-000.00 for future loss of society, $200,-000.00 for past mental anguish, and $200,-000.00 for future mental anguish.

Damages for non-pecuniary harm such as loss of society and mental anguish are allowable under the Wrongful Death Statute, Tex.Civ.Prac. & Rem.Code Ann. § 71.001-71.011 (Vernon 1986). Sanchez v. Schindler, 651 S.W.2d 249, 251 (Tex.1983). Loss of society refers to a loss of positive benefits flowing from the love, comfort and companionship which a plaintiff would, in reasonable probability, have experienced if the lost family member had lived. Mental anguish represents the emotional pain, torment, and suffering that surviving family members experience as a result of a wrongful death. Moore v. Lillebo, 722 S.W.2d 683, 687-88 (Tex.1986).

In Moore, the Supreme Court of Texas held that the factors which may be considered in awarding damages for mental anguish and loss of society include: 1) the relationship between the parent and child, 2) the living arrangements of the parties, 3) any absence of the deceased from the beneficiary for extended periods, 4) the harmony of family relations, and 5) common interests and activities. Moore, 722 S.W.2d at 688.

According to Lydia Castro’s testimony, she and her husband, Wally’s father, Eduardo, separated in 1979. Wally was her first child, the only child of her marriage to Eduardo. She and Wally then moved in with her mother, Ofelia. In 1981, Lydia and Wally moved to Dallas, where they resided together for two years. Following a short stay in Edna, Texas, the two returned to Weslaco. Although Wally had been living with his grandmother for several months as of the date of the accident, Lydia had planned for Wally to move back in with her when school started.- (Wally was killed on the first day of the school year).

During direct examination, Lydia identified pictures of her son she had taken at several of his birthday parties, and a photograph taken at school, which Wally had asked her to keep in her wallet. She related how a little boy had told her of Wally’s accident and how she had rushed to the hospital, where she heard her son screaming in pain. She was pregnant at the time, expecting to give birth any day.

Appellees also offered the deposition testimony of Dr. Ramiro Ramirez, a clinical psychologist who evaluated both Lydia and her husband before trial. Ramirez stated that Lydia exhibited signs of paranoia, hysteria, and severe anger as a result of her son’s death. Lydia also told him that her son was her “whole life,” and that she was outraged because he no longer existed. Dr. Ramirez found that Lydia was functioning well prior to her son’s death, and that her present degree of unhappiness, loneliness, and anger did not exist prior to the child’s death.

Dr. Everett G. Dillworth, an economist and business consultant, evaluated the deceased’s earning capacity and the value of his household services, and provided guidelines to the jury to put a monetary value on the loss of Wally’s society to the parents. He found that Wally would have earned $565,000 after discounting, and that the value of his household services to his mother would have been $86,000 if he assisted her ten hours a week. Dr. Dillworth attempted to evaluate the loss of society by recognizing the positive benefits that are received and used as benchmarks salaries received by the “helping professions,” i.e., the clergy, social workers, counselors. He found, without attempting to consider the quality of the society or companionship, that one hour per day over the life expectancy of the mother would discount to a value of $193,000; for the father, Eduardo, $157,000.

Dr. Dillworth stated he was attempting to provide some “benchmarks” or guidelines to aid the jury in evaluating the loss of society, but both the quantity and quality of the society that Wally would have provided was up to the jury to determine. His calculations were aggressively assailed on cross-examination.

We are called upon to determine whether the awards to the mother, Lydia Castro, for loss of society and mental anguish are so against the great weight and preponderance of the evidence as to be manifestly unjust. The valuation of an emotional injury that accrues to the time of trial, using the brief history of the companionship and wrestling with values of intangibles that are not bought and sold, is properly a task for twelve members of the community to manage by a collective decision. How much more difficult to foresee the future quality, quantity, and value of such injuries.

The duty of the intermediate appellate court, thankfully, is not to determine ab initio the quality, quantity, and unit value of the components of the intangibles, but rather to determine if the value found by the jury is so against the evidence, or unsupported by the evidence, so as to be manifestly unjust. After carefully reviewing the evidence, we cannot say the awards to Lydia Castro of $400,000 for past and future loss of society and $400,000 for past and future mental anguish are manifestly unjust under the evidence. Points of error ten, eleven, twelve, and thirteen are overruled. See Moore, 722 S.W.2d at 688.

Points six through nine assert there was no evidence or, in the alternative, insufficient evidence to support the jury’s award of $60,000.00 for future loss of society and $100,000.00 for future mental anguish to Wally’s father, Eduardo Guajardo. The jury found no damage to Eduardo for loss of society in the past.

While Eduardo did not appear at trial, Ramirez’s deposition testimony revealed that he had had a “very good relationship” with Wally, although he had been prevented from getting very close to his son due to the “intensified negative feelings” between Eduardo and Lydia. Ramirez further stated that although they had not lived together since 1979, Eduardo saw Wally approximately once a month while Wally was in Weslaco; moreover, their relationship was “as close as it could be, considering the circumstances.” Eduardo has a hearing disability and communicated with Dr. Ramirez through an interpreter. We find this evidence sufficient to support the complained-of findings and overrule points six, seven, eight, and nine.

Appellant contends by point of error fourteen that the evidence does not support the jury’s award of $600,000.00 for the conscious pain and mental anguish suffered by Wally Castro immediately before his death.

The record reflects that after appellant’s truck struck Wally, Wally’s body tumbled underneath the vehicle. Appellant testified that Wally was “awake” after the accident and was moaning. Wally’s two companions pulled him out from under the truck and laid him on the tailgate, where he remained until an ambulance arrived. Lydia Castro testified that after rushing to the hospital, she heard her son screaming in pain in the emergency room.

The evidence does not reflect exactly how long Wally suffered conscious physical pain before his death. However, Officer Pena testified that he was called to the scene of the accident at 6:08 p.m. He saw Wally lying on the tailgate of appellant’s truck at 6:11. Wally's mother heard about the accident at 6:15 and immediately left for the hospital, where she witnessed doctors attempting to give her son blood. She stated that she did not remember how long she was at the hospital.

In Gulf States Utilities Co. v. Reed, 659 S.W.2d 849 (Tex.App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.), the Court upheld the jury’s $10,000.00 award for five seconds of conscious pain endured by a minor who was electrocuted by a high voltage wire.

Southern Pacific Transportation Co. v. Luna, 730 S.W.2d 36 (Tex.App.—Corpus Christi 1987, no writ) (on remand) involved a minor who had been injured in a collision between his father’s car and a train. Medical records revealed that the child had no response to painful stimuli and did not improve neurologically after the accident. However, the child’s father testified that his son responded to him by opening his eyes occasionally during the last weeks of his life. This Court found that although it was impossible to know what kind of anguish the boy felt, his “responses” constituted some evidence that he was conscious, and therefore justified the jury’s $50,000.00 award. Id. at 38.

In the instant case, the record clearly reflects that Wally consciously felt severe pain for at least fifteen minutes after being struck by appellant’s vehicle. In addition to the physical pain, the child was certainly terrified as a result of the situation he found thrust upon himself. Given the evidence of pain, his youth, and the inferred mental anguish that he suffered, we cannot say that the award of $600,000.00 was manifestly unjust. Point fourteen is overruled.

The judgment of the trial court is AFFIRMED.

1 . See Tex.Civ.Prac. & Rem.Code § 71.002 (Vernon 1986).