COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-377-CV
LOIS BEDFORD, INDIVIDUALLY APPELLANT
AND ON BEHALF OF THE ESTATE
OF EDWIN BEDFORD, DECEASED
V.
RITA ELAINE MOORE, TIM ALDRICH APPELLEES
D/B/A T-C TRUCKING COMPANY,
AND SCOTTY HAMRICK D/B/A
WESTERN CONTRACTORS
------------
FROM THE 153RD DISTRICT COURT
OF TARRANT COUNTY
OPINION *
I. Introduction
This
is an appeal from a judgment in a car-truck collision case following a jury
verdict in favor of Rita Elaine Moore (“Moore”), Tim Aldrich d/b/a T-C
Trucking Company (“Aldrich” and “T-C”), and Scotty Hamrick d/b/a Western
Contractors (“Hamrick” and “Western”), wherein in two issues Lois
Bedford, individually and on behalf of the estate of Edwin Bedford
(“Bedford”) asserts that the trial court committed error in the charge of
the court by failing to submit a negligence question to the jury concerning
Western and Aldrich and by excluding evidence that Moore, the driver of the
Western vehicle, tested positive for methamphetamines in her post-accident drug
screen. We will affirm.
II. Factual Background
This
is the case of the absent entrustment issue. Shortly after noon on September 9,
1999, Edwin Bedford (“Mr. Bedford”) was involved in a motor vehicle accident
with Moore. Mr. Bedford had pulled into a convenience store at the intersection
of FM 1187 and Stephenson-Levy Road in Tarrant County, Texas. Upon emerging from
the store parking lot, he crossed, or was crossing, the eastbound lane of FM
1187 to head westward when he was struck by an eastbound Volvo gravel truck
driven by Moore for Western. Although she applied her brakes and attempted to
avoid the collision, Moore was unable to avoid striking the vehicle. The
collision caused Mr. Bedford’s vehicle to be pushed off the road and up an
embankment before the Volvo gravel truck came to rest on top of Mr. Bedford’s
vehicle. Mr. Bedford died as a result of the accident. Following the accident,
Moore tested positive in a drug screen for methamphetamines.
The
truck Moore was driving was owned by Aldrich, an employee of Western. It was
leased to Western, which was owned by Hamrick, and was operated under
Western’s United States Department of Transportation (“DOT”) permit. Prior
to this incident, Moore had been involved in two other motor vehicle accidents
and had received ten or more speeding citations in her eight years as a
commercial driver. Hamrick had not taken any steps to check Moore’s driving
record before she was employed. The evening before the accident, Moore had been
up all night waiting in an emergency room at a local hospital as a result of a
head injury. When she arrived for work on the day of the accident, she appeared
with a bandaged head and had received nine stitches in the emergency room but
was allowed to drive the truck that was involved in the accident.
After
the accident, this lawsuit ensued between Bedford and those allegedly
responsible for the accident, resulting in a take-nothing judgment following a
jury trial. Bedford appeals that judgment.
III. Charge of the Court
Bedford
phrases her first issue as “Whether the trial court erred in not submitting a
negligence determination to the jury of Western Contractors and Aldrich?”
A. Standard of Review
The
trial court’s submission of instructions and jury questions is reviewed under
an abuse of discretion standard. Toles v. Toles, 45 S.W.3d 252, 263 (Tex.
App.—Dallas 2001, pet. denied). The trial court has broad discretion in
submitting jury questions so long as the questions submitted fairly place the
disputed issue before the jury. This broad discretion is subject only to the
limitation that the controlling issues of fact must be submitted to the jury. Rosell
v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 653 (Tex. App.—Dallas 2002,
pet. denied).
In
order to have a question submitted to the jury, there must be a proper legal
theory forming a basis of recovery, and there must be sufficient evidence
adduced to warrant its submission. If the reviewing/appellate court determines
that error occurred, it must determine from the pleadings of the parties, the
evidence presented at the trial, and the charge in its entirety whether such
errors are reversible. Island Recreational Dev. Corp. v. Republic of Tex. Sav.
Ass’n, 710 S.W.2d 551, 555 (Tex. 1986). Charge error is harmful only if it
probably caused an improper judgment. Tex.
R. App. P. 44.1(a)(1); Rosell, 89 S.W.3d at 653.
B. The Negligence Question
In
its charge, the trial court posed to the jury the following liability questions
(instructions omitted):
Question 1:
Did
the negligence, if any, of those named below proximately cause the occurrence in
question?
Answer
Yes or No for each of the following:
Rita
Elaine Moore _________
Edwin
Bedford _________
Question
2:
What
percentage of the negligence that caused the occurrence do you find to be
attributable to each of those listed below and found by you, in your answer to
Question 1, to have been negligent?
Total 100%
No
question was presented to the jury concerning the negligence of Western or
Aldrich compared to the negligence of Moore and Bedford. The jury answered
question number one affirmatively for both Moore and Bedford. In response to
question number two, the jury allotted forty percent of the negligence to Moore
and sixty percent to Bedford, thereby precluding any recovery on Bedford’s
part due to the fifty-percent bar rule. Tex.
Civ. Prac. & Rem. Code Ann. § 33.001 (Vernon 1997).1
The court subsequently signed a take-nothing judgment on September 24,
2003. This appeal followed.
C. Negligent Hiring and Entrustment
In
the pleadings on file, Bedford asserted various direct negligence causes of
action against Aldrich and Western, generally related to negligent hiring,
training, retaining, supervising, and entrusting Moore with the vehicle on the
date in question, along with numerous alleged violations of the Federal Motor
Carrier Safety Regulations.2 On appeal,
Bedford points the court to evidence presented at the trial of negligent hiring
and entrustment by Aldrich and Western. This evidence is not contested.
It
is appellees’ position that it was unnecessary to submit a comparative
negligence issue as to any party other than Moore and Bedford because the
liability of any other defending party (the “other parties”) would be
derivative of Moore’s liability. In other words, the “other parties”
actions, standing alone, could not have caused this accident without the actions
of Moore at the time of the accident. That is, they could be exposed to
liability only if Moore’s negligence proximately caused the accident.
Appellees cite Rosell, 89 S.W.3d at 643, Loom Craft Carpet Mills, Inc.
v. Gorrell, 823 S.W.2d 431 (Tex. App.—Texarkana 1992, no writ), and Rodgers
v. McFarland, 402 S.W.2d 208 (Tex. Civ. App.—El Paso 1966, writ ref’d
n.r.e.), to support their position that the “other parties’” submission
was unnecessary. In Loom Craft, the court held as follows:
Negligent entrustment liability is derivative in nature. While entrusting
is a separate act of negligence, and in that sense not imputed, it is still
derivative in that one may be extremely negligent in entrusting and yet have no
liability until the driver causes an injury. If the owner is negligent,
his liability for the acts of the driver is established, and the degree of
negligence of the owner would be of no consequence. When the driver’s
wrong is established, then by negligent entrustment, liability for such wrong is
passed on to the owner. We believe the better rule is to apportion
fault only among those directly involved in the accident, and to hold the
entrustor liable for the percentage of fault apportioned to the driver.
823
S.W.2d at 432 (emphasis supplied) (citations omitted). In Rodgers
(a case involving the old “guest” statute, Article 6701b of the Texas Civil
Statutes3), the court observed that
[t]he doctrine of negligent entrustment is that the owner of a vehicle who
knowingly turns it over to an incompetent driver is liable for wrong committed
by such driver. It differs from master-servant or agency relationships,
for it is founded in tort—the negligence of the owner in turning the
incompetent loose on the public. If, in fact, the owner is negligent, his
liability for the acts of the driver is established, and the degree of
negligence of the owner would be of no consequence . . . . Obviously, an
owner who is negligent in entrusting his vehicle is not liable for such
negligence until some wrong is committed by the one to whom it is entrusted . .
. . The driver’s wrong, in the form of legal liability to the plaintiff,
first must first be established, then by negligent entrustment liability for
such wrong is passed on to the owner. The proximate cause of the accident
or the occurrence is the negligence of the driver and not that of the owner.
402
S.W.2d at 210. The Rodgers opinion further cites McIntire v.
Sellers, 311 S.W.2d 886 (Tex. Civ. App.—Austin 1958, writ ref’d n.r.e.),
for the proposition that “we do not believe it was necessary to submit an
issue of proximate cause insofar as concerned the owner’s negligence in
entrusting the automobile to an unlicensed driver.” Id. at 892-93
(emphasis supplied). We would observe that the Rodgers case was
written before the adoption of the Proportionate Responsibility Act, as it
appears today in the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. §
33.001; see also Rosell, 89 S.W.3d at 656 (“[B]ecause [the employer]
would be liable for its employees’ negligence [under negligent entrustment],
there was no necessity for including [the employer] in the ordinary negligence
liability question.”)
D. Respondeat Superior
Bedford
also assigned vicarious liability to Aldrich and Western as truck owner and
employer of Moore under the theory of respondeat superior. As to vicarious
liability, such as the theory of respondeat superior for an employee/employer,
there need not be any allegation of negligence on the employer’s part because
an employer would be responsible for the employees’ actions even if the
employer were free from fault. Baptist Mem’l Hosp. Sys. v. Sampson,
969 S.W.2d 945, 947 (Tex. 1998). Therefore, there is no need to submit the
employer’s or owner’s separate negligence under that theory. Rosell,
89 S.W.3d at 653.
E.
Which Theory is Most Applicable?
It
is appellees’ position that negligent hiring and entrustment are akin to the
respondeat superior doctrine because both are derivative in nature. That
is, they are dependent on a finding of negligence against Moore before any
liability can be attributed to them. Further, appellees argue that the
previously recited case law regarding negligent entrustment does not support
submitting the employer or owner in the negligence liability/percentage
questions, per Loom Craft, Rodgers, MacIntire, and Rosell.
Bedford
responds to these arguments by asserting that chapter 33 of the Texas Civil
Practice and Remedies Code specifically provides that a jury shall determine the
negligence of “each defendant.” Tex.
Civ. Prac. & Rem. Code Ann. § 33.003(2). Section 33.003,
entitled “Determination of Percentage of Responsibility” provides that
[t]he trier of fact, as to each cause of action asserted, shall determine the
percentage of responsibility, stated in whole numbers, for the following
persons:
(1)
. . .
(2)
each defendant . . . .
Id.
Section 33.011, the definitions section, defines “defendant” as “any
person from whom, at the time of the submission of the case to the trier of
fact, a claimant seeks recovery of damages.” Tex. Civ. Prac. & Rem. Code Ann. §
33.011 (Vernon Supp. 2004-05). Bedford therefore asserts that because
damages were sought at the time of trial from the “other parties,” e.g.,
Aldrich and Western, it was error not to include them in Question 1 and Question
2 of the charge of the court. We do not agree with the literal
interpretation urged by Bedford. As the Dallas Court of Appeals has observed,
[W]e observe that, while the statute [section 33.003] on its face requires all
defendants to be included in the apportionment question, it would not be proper
for an employer to be included along with the driver if its only responsibility
was that of respondeat superior.
Rosell,
89 S.W.3d at 656-57.
This
is obvious because an employer may have committed no negligent acts to submit to
the jury and still be held accountable under respondeat superior. Also,
Professors Underwood and Morrison have postulated that the legislature, in
enacting the original and present versions of section 33.003, did not consider
derivative or vicarious liability cases. William D. Underwood &
Michael D. Morrison, Apportioning Responsibility in Cases Involving Claims of
Vicarious Derivative, or Statutory Liability for Harm Directly Caused by the
Conduct of Another, 55 Baylor L. Rev.
617, 647-48 2003). They note that nothing in the legislative history
suggests that the act intended to overturn the long-established rule that the
responsibility of persons who are derivatively liable should not be submitted:
Before construing the revised provisions in Chapter 33 to overturn established
law — law that is supported by compelling policy justifications — it would
not be unreasonable to insist on more direct indication that this is what the
legislature intended to accomplish.
Id.
at 648.
Bedford
further responds by pointing to the recent case, F.F.P. Operating Partners,
L.P. v. Duenez, 47 Tex. Sup. Ct. J. 1068, 2004 WL 1966008 (Tex. Sept. 3,
2004), as requiring the submission of the “other parties’”
negligence to the jury. We first note that this opinion is a five-four
decision with Justice O’Neill writing for the majority and Justice Owen
writing for the dissent, with a motion for rehearing pending at this time.
Before examining this case, we must first decide specifically, what issue is
before this court? Succinctly put, it is, should negligent hiring and
entrustment by an employer be submitted comparatively to the jury along with the
employee’s negligence? There appears to be three types of cases under
consideration. First is a purely vicarious liability situation, such as an
employer/employee relationship involving respondeat superior wherein the
employer is liable for the actions of the employee regardless of any allegation
of fault on the part of the employer. Under this situation, the
employer’s negligence is not submitted because the employer and employee are
considered to be one and the same. Duenez, 2004 WL 196608, at
*4. Second, at the other end of the spectrum are concurrent tortfeasers
whose independent, distinct acts both proximately cause damage to the plaintiff,
such as two automobiles running a red light and colliding with a third
vehicle. Obviously in such a situation, both drivers who ran the red light
would be submitted to the jury in the liability and percentage of negligence
questions. Third, betwixt these situations are the negligent hiring and
entrustment situations in which there are distinct acts of negligence, like the
concurrent tortfeasor situation, and yet the distinct negligent act of hiring or
entrusting, standing alone, is wholly dependent for causation upon the actions
of the person who directly caused the accident, as in the respondeat superior
situation. The question presented to us is whether this intermediate
occurrence should be “lumped” with the respondeat superior situation in
which the employer’s negligence is not submitted to the jury, or with the
independent tortfeasor situation in which the employer’s negligence is
submitted to the jury.
The
Duenez case is a Dram Shop Act case. The Duenzes sued F.F.P.
Operating Partners, L.P., for providing alcohol to Ruiz, whose truck collided
with the Duenzes’ car, causing significant injuries to the family. Our
supreme court observed,
Causation under the Dram Shop Act is tied to the patron’s intoxication rather
than the provider’s conduct. Because the Act imposes liability on
providers for the actions of their customers regardless of whether the
provider’s conduct actually caused the injuries suffered, the court of appeals
in this case concluded that the provider’s liability is purely
vicarious. Under the court’s analysis, the provider and the intoxicated
patron are one and the same, like the employer and the employee in a case
founded upon the doctrine of respondeat superior. It is true that, if a
provider’s liability under the Dram Shop Act were purely vicarious, as the
court of appeals held, there would be nothing for the jury to apportion between
F.F.P. and the Duenezes in this case. But the Act has a direct liability
component that the court of appeals wholly ignored. Unlike true vicarious
liability, in which one party’s actionable conduct is imputed to another, a
dram shop’s liability stems in part from its own wrongful conduct. In
order to impose liability under the Act, the factfinder must conclude that the
provider made alcohol available to an obviously intoxicated patron whose
intoxication caused the plaintiff harm . . . . Accordingly, the dram shop
liability is based on its own wrongful or dangerous conduct, even though the
statutorily required causal link focuses on the patron’s intoxication . . . .
Id.
at *4.
The
court goes on to conclude,
[W]hen the factfinder determines that a provider has violated the Dram Shop Act
and its patron’s intoxication has caused a third party harm, responsibility
must be apportioned between the dram shop and the intoxicated patron, as well as
the injured third party if there is evidence of comparative negligence. The
resulting judgment should aggregate the dram shop’s and driver’s liability
so that the plaintiff fully recovers from the provider without assuming the
risks of the driver’s insolvency. The dram shop may then recover from
the driver based upon the percentages of responsibilities that the jury assessed
between them.
Id.
at *5 (emphasis supplied).
The
reasoning of the majority of the supreme court parallels the negligent
hiring/entrustment theory of recovery. Under both theories, neither are
pure vicarious liability situations because liability stems from distinct
wrongful conduct. In order to impose liability under both situations, the
fact finder must conclude that a preceding independent action occurred that
caused the plaintiff harm even though the required causal link focuses on the
act of the driver. Further, like the Dram Shop Act, if the hiring or
entrusting employer is negligent, his liability for the acts of the driver is
established, but by submitting both the driver’s and the hiring or entrusting
employer’s negligence to the jury, allowance is made for recovery by the
hiring or entrusting employer from the driver, based on the percentages of
responsibility assessed by the jury.
Therefore,
we hold that the proper submission in a simple negligent entrustment or hiring
claim, based upon sufficient evidence to warrant the submission, is to include
the alleged negligent hiring or entrusting employer in an initial liability
question and in the comparative negligence questions.
F.
Sufficient Evidence
In
order to have a question submitted to the jury, sufficient evidence must be
raised by its proponent, that is, the evidence must raise a material fact
issue. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29
S.W.3d 74, 77 (Tex. 2000). Bedford asserts that she “pled and proved
numerous acts of direct negligence of both Aldrich and Western Contractors for
liability.” We agree that there is sufficient evidence adduced to
warrant submission to the jury for decision on the issue of negligent hiring and
entrustment as to Western and negligent entrustment as to Aldrich. This
evidence includes the following: Western Contractors did not perform a
driving history check on Moore nor did Western Contractors even have a policy or
procedure in place for ever performing driving history checks on its drivers;
Hamrick agreed that a reasonable trucking company exercising reasonable care
would have verified a prospective commercial driver’s driving history; Hamrick
admitted at trial that a reasonable trucking company seeing items listed on
Moore’s driving record would not have employed Moore as an operator of a
commercial vehicle; Moore was not required to fill out an employment application
as required by Federal Motor Carrier Safety Regulations (“FMCSR”) section
391.21; Moore was not required to perform a pre-employment drug screen as
required by FMCSR section 382.301; there was not a policy or procedure for
requiring random drug testing as required by FMCSR section 382.305; Moore was
not required to submit to a drug screen following her first accident while
driving a company vehicle as required by FMCSR section 382.303; neither Aldrich
nor Western required Moore to provide them with information from or about her
prior employers as required by FMCSR section 391.21 and admitted to as the
standard of care for a reasonable trucking company; and there was not a driver
qualification file maintained on Moore as required by FMCSR section 391.51,
which would have contained Moore’s prior driving history, Moore’s prior
employment history, Moore’s employment application, and a list of Moore’s
violations of motor vehicle laws and ordinances.
Further,
when Moore showed up the morning of September 9, 1999, the day of the collision
with Mr. Bedford, she had an obvious bandage on her head where she had just
received nine stitches at an emergency room. Moore informed Aldrich that
she had just come from the emergency room where she had been since
midnight. Before Moore got behind the wheel of the gravel truck owned by
Aldrich and began operating the truck under Western’s DOT permit, it was
apparent that she had suffered a head injury and had been without sleep since at
least midnight.
G.
Application
For
two reasons, however, we hold that it was harmless error in this case to fail to
submit negligent hiring and entrustment in the liability and percentage of
liability questions. First, as pointed out in Rosell, the elements
of negligent hiring are different from the elements of negligent entrustment.
For negligent hiring, a plaintiff must prove that (1) the employer owed a legal
duty to protect the employee’s actions and (2) the third party’s sustained
damages were proximately caused by the employer’s breach of that duty. Rosell,
89 S.W.3d at 655. In order to prove a cause of action for negligent entrustment,
the proponent must show that there was (1) entrustment of a vehicle by the
owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the owner
knew or should have known to be unlicensed, incompetent, or reckless; and (4)
the driver’s negligence on the occasion in question; (5) proximately caused
the accident. Id. This may require the submission of separate
negligence issues on different negligence theories when submitted with the
negligence of other parties. Id. at 655-56.
Further,
the jury determined that Bedford was sixty percent responsible for the accident
and Moore was forty percent responsible. The Texas apportionment scheme
requires the trier of fact to determine the percentage of causation
attributable to each claimant, defendant, and responsible third party.4 The jury question and accompanying instructions were
consistent with this law. The court must presume that the jury followed
the court’s instructions and apportioned the responsibility according to its
view of how much the parties contributed to causing the accident. See
Tesfa v. Stewart, 135 S.W.3d 272, 278 (Tex. App.—Fort Worth 2004, no
pet.). There were only two people involved in the accident.
Therefore, the submission of the acts of “other parties” whose actions
preceded the actions of Moore at the time of the accident could only have
contributed to her actions at the accident scene, that is, to her forty percent
negligence. In other words, because there were only two parties involved in the
incident, the jury has decided how those actions at the time of the accident
should be apportioned as far as responsibility is concerned. What led up
to those actions at the time of the accident does not change those actions at
the accident scene but can only be subparts of those respective
responsibilities. Aldrich and Hamrick did not cause Bedford to cross the
highway or Moore to strike that truck. Therefore, while we believe that
the proper submission in a simple negligent entrustment or negligent hiring case
is to submit the negligent entrustor or negligent hiring employer in the general
liability and comparative questions, under the facts of this case, we conclude
that it was harmless error to omit them from those questions.
IV. Excluded Evidence
In
her second issue, Bedford alleges that the trial court “erred in excluding all
evidence regarding the positive results of Rita Moore’s post-MVA drug
screen.” Following the accident, a DOT-required drug screen showed that
Moore had methamphetamines in her system. The trial court excluded all
evidence concerning the drug screen and its results. Bedford attempted to
offer the testimony of Dr. Daniel Drew, a physician retained by DOT who had
analyzed the drug screen conducted on Moore. Upon objection, Dr. Drew was
not allowed to testify about the correctness of the examination and the effects
methamphetamine can have on an individual. Dr. Drew also testified outside
the presence of the jury that the testing showed that sometime between September
5 and September 9 of 1999, Moore had either eaten or injected or in some other
way received methamphetamine into her system which was “at least a minute
amount. There was enough to make certain that this could not have been
from second hand smoke . . . or something like that.” However, Dr. Drew
also testified that a positive finding for methamphetamines did not prove
impairment and that he could not tell the jury that Moore was impaired at the
time of the accident. Bedford also attempted to offer the lay testimony of
witness Ronald G. Curry that Moore appeared to be under the influence of drugs
at the time of the accident and that she appeared to be “hyper.” On
objection, these observations were not allowed to be presented to the jury.
A. Applicable Law and Standard of Review
A
trial court’s evidentiary ruling is reviewed under an abuse of discretion
standard. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35,
43 (Tex. 1998). A court abuses its discretion only when it rules without
regard to any guiding rules or principles. Id. Exclusion of
evidence is harmful only if the evidence is controlling on a material issue and
is not cumulative. Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex.
1994); Franco v. Franco, 81 S.W.3d 319, 321 (Tex. App.—El Paso 2002, no
pet.). A successful challenge to an evidentiary ruling generally requires
showing that the judgment turned on the particular evidence in dispute. Tex.
Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). We examine
the entire record in making this determination of harm. Interstate
Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).
Generally,
drug usage, without further evidence of negligence, is inadmissible. See
Trans-State Pavers, Inc. v. Haynes, 808 S.W.2d 727, 729 (Tex.
App.—Beaumont 1991, writ denied); Dorman v. Langlinais, 592 S.W.2d 650,
652 (Tex. Civ. App.—Beaumont 1979, no writ). Bedford cites Nichols v.
Howard Trucking Co., 839 S.W.2d 155 (Tex. App.—Beaumont 1992, no writ),
for the proposition that once evidence of improper conduct or negligence is
presented, a trial court’s exclusion of testimony concerning a party’s use
of intoxicants is reversible error. In the Nichols case, the
deceased driver was found to have an alcohol concentration in his blood of
.0516, and a urine analysis test revealed that he tested positive for the
presence of cannabinoids, that is, marijuana. There was expert testimony
concerning the adverse effects that alcohol had on the individual’s ability to
operate an automobile and the effect that marijuana had on an individual.
The court noted that “evidence of the use of intoxicants is inadmissible as
immaterial unless there is further evidence of negligence and improper conduct
of the part of the user.” Id. at 158. That is, evidence of
drug usage must provide some explanation for the negligence and improper
conduct. However, this was not present under our facts because Dr. Drew
could not tie the presence of methamphetamines in Moore’s body to impairment
at the time of the accident, and therefore could not connect the presence of the
drug to causation.
Further,
because Dr. Drew could not identify any particular level of the drug in
Moore’s system at time of the accident or state that the amount of the drug in
her system was at a level at which any impairment could be adduced, there was no
evidence that the presence of the drug was a causative factor in the
accident. We hold that the trial court did not abuse its discretion by
excluding the testimony of Dr. Drew or Mr. Curry.
V. Conclusion
Having
overruled Bedford’s issues, we affirm the judgment of the trial court.
BOB
MCCOY
JUSTICE
PANEL A: CAYCE,
C.J.; LIVINGSTON and MCCOY, JJ.
CAYCE, C.J. filed a concurring
opinion.
DELIVERED: May 26, 2005
LOIS BEDFORD, INDIVIDUALLY APPELLANT
RITA ELAINE MOORE, TIM ALDRICH
APPELLEES
CONCURRING OPINION
I
join the majority’s opinion, but I concur only in the result reached by the
majority on the issue of whether the trial court erred in failing to submit the
negligence of Aldrich and Hamrick to the jury.
The
jury found that Bedford was sixty percent responsible for the accident.
This unchallenged finding is binding on appellants and bars their recovery as a
matter of law. Tex. Civ. Prac.
& Rem. Code Ann. § 33.001 (Vernon 1997). Therefore, assuming
without deciding that the trial court erred in failing to submit the negligence
of Aldrich and Hamrick, I believe the error, if any, was harmless.5 See Boatland of Houston, Inc. v. Bailey, 609
S.W.2d 743, 750 (Tex. 1980) (holding error in submission of jury question is
harmless when other jury findings support judgment); Tex. & Pac. Ry. Co.
v. Snider, 159 Tex. 380, 321 S.W.2d 280, 283 (1959) (holding error in
submitting definition of contributory negligence harmless where judgment rested
on different jury findings); San Antonio Press, Inc. v. Custom Bilt Machinery,
852 S.W.2d 64, 65 (Tex. App.—San Antonio 1993, no writ) (stating that when
unchallenged no-damage finding supports judgment, error in liability finding is
harmless).
For
these reasons, I concur only in the result reached by the majority in overruling
issue one. I join the remainder of the opinion.
JOHN
CAYCE
CHIEF
JUSTICE
NOTES
* OPINION BY JUSTICE MCCOY; CONCURRING OPINION BY CHIEF
JUSTICE CAYCE
MAJORITY OPINION NOTES
1.
The liability theories against Aldrich and Hamrick were submitted in separate
subsequent questions. These questions were not reached because of the
jury’s answer to Question No. 2 and the conditioning instruction preceding
them.
2.
49 C.F.R. §§ 350.101-399.211
(2004).
3.
Act of May 26, 1931, 42nd Leg., R.S., ch. 225, 1931 Tex. Gen. Laws 379, repealed
by Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws 3242,
3322.
4.
Tex. Civ. Prac. & Rem. Code Ann.
§ 33.003. This comparative causation system is distinct from one that
compares the relative fault of the parties. See generally, Montford,
J. & Barber, W.,1987 Texas Tort Reform: The Quest for a Fairer and More
Predictable Texas Civil Justice System 25 Hou. L. Rev. 245, 272-75 (1988).
For the distinction between comparative fault and comparative causation system,
see Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 427-28 (Tex. 1984).
CONCURRING OPINION NOTES
5.
We may not speculate, as appellant urges us to do, whether the jury might have
assigned less than fifty percent responsibility to Bedford if it had been
allowed to consider Aldrich and Hamrick’s negligence. Instead, we must
presume the jury followed the trial court’s instructions and apportioned sixty
percent of the responsibility for the accident to Bedford based on the
evidence. See Tesfa v. Stewart, 135 S.W.3d 272, 278 (Tex.
App.—Fort Worth 2004, pet. denied).