Lorillard v. Davis

770 S.W.2d 606, 1989 WL 60524
CourtCourt of Appeals of Texas
DecidedApril 21, 1989
Docket05-88-00795-CV
StatusPublished
Cited by11 cases

This text of 770 S.W.2d 606 (Lorillard v. Davis) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lorillard v. Davis, 770 S.W.2d 606, 1989 WL 60524 (Tex. Ct. App. 1989).

Opinions

BAKER, Justice.

This appeal is from a judgment for punitive damages against Lorillard for negligently entrusting an automobile to Henry Edward Johnson, one of its employees. We overrule Lorillard’s five points of error and affirm the trial court’s judgment.

Henry Edward Johnson, a Lorillard employee, was involved in an automobile accident in December 1984. Ruthie Davis sued Johnson for his negligence for causing the accident and sued Lorillard for negligently entrusting the automobile to Johnson, its employee. A jury found Johnson negligent for speeding, failing to keep a lookout, and following too closely. The jury failed to find that Johnson was grossly negligent in his conduct. The jury also found that Lor-illard negligently entrusted the car to Johnson and found that Lorillard’s conduct was grossly negligent. Based upon the jury verdict, the trial court awarded actual damages against both Johnson and Lorillard, jointly and severally. The parties have settled that part of the judgment involving actual damages. The court also entered judgment against Lorillard for punitive damages for $250,000.00 as found by the jury. This appeal involves only the punitive damages issue.

In its first point of error, Lorillard contends that the trial court erred in submitting jury question number 4 because it impermissibly commented on the weight of the evidence by assuming that Johnson was a reckless driver. Lorillard was held liable solely on the basis of negligently entrusting the car to Johnson. On the theory of negligent entrustment, the trial court submitted question number 4 as follows:

As to Lorillard, “negligence” means its entrusting a vehicle to a reckless driver if the entruster knew or should have known that the driver was reckless. Such negligence is a proximate cause of a collision if the negligence of the driver to whom the vehicle was entrusted is a proximate cause of the collision.
SPECIAL ISSUE NUMBER 4
Did the negligence, if any, of Lorillard proximately cause the occurrence in question?
Answer: “Yes” or “No”.
ANSWER: Yes

Lorillard objected to question number 4 for the reason that the “same constitutes a comment on the weight of the evidence or a comment on the evidence because it assumes a reckless driver.”

Lorillard argues that Johnson’s recklessness was a crucial element of the [608]*608negligent entrustment claim, but the trial court did not define “reckless” in the charge, nor did it submit a separate question requesting the jury to find whether Johnson was reckless. The record reflects that Lorillard did not request a definition on Johnson’s recklessness. When the court’s charge contains no instruction or definition, the complaining party must accompany his clear and specific objection to such omission with a substantially correct instruction or definition. See Yellow Cab and Baggage Co. v. Green, 154 Tex. 330, 277 S.W.2d 92, 93 (1955). Since Lorillard failed to object to the absence of a definition of “reckless” and failed to submit an instruction or definition, Lorillard has waived its right to complain on appeal on this argument. See TEX.R.CIV.P. 278; Kold-Serve Corp. v. Ward, 736 S.W.2d 750, 753 (Tex.App.—Corpus Christi 1987, writ dism’d by agr.); Bounds v. Caudle, 611 S.W.2d 685, 687-88 (Tex.Civ.App.—Corpus Christi 1980, writ ref’d n.r.e.).

Lorillard also claims that the trial court erred by failing to submit a separate question on whether Johnson was a reckless driver, an essential element of Davis’ claim of negligent entrustment. We disagree. Question number 4, in combination with the accompanying definition of negligence, properly submitted the issue of Johnson’s recklessness. By its affirmative answer, the jury necessarily found that Lorillard entrusted the vehicle to a reckless driver. In other words, the trial court submitted the issue on negligent entrustment in a broad-form question, which encompassed all elements of negligence and proximate cause. See Williams v. Steves Industries, Inc., 699 S.W.2d 570, 571 (Tex.1985). Such submission is not only proper but mandatory whenever feasible. See TEX.R.CIV.P. 277; Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 937 (Tex.), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980). Had the jury believed that Johnson was not a reckless driver, they would have answered “no” to question number 4.

Lorillard next contends that the question, as submitted, assumed Johnson was reckless and is therefore a comment on the weight of the evidence. Lorillard objected to the question on that ground. Lor-illard contends that rule 277 of the Texas Rules of Civil Procedure prohibits the submission of a question which directly comments on the weight of the evidence and relies upon Briseno v. Martin, 561 S.W.2d 794 (Tex.1977), as authority for its position that the question as submitted was erroneous. Briseno was also a negligent entrustment suit. The assertion made in Briseno is the same as Lorillard makes here. In Briseno, the argument was made that the issue impermissibly commented on the weight of the evidence because it was not submitted conditionally upon a finding that the driver was reckless. Briseno, 561 S.W. 2d at 796. The supreme court held that the specific issue in question did comment on the weight of the evidence, but the comment was only incidental because, in the preceding special issue, the jury specifically found that the driver was reckless. Briseno, 561 S.W.2d at 797. Lorillard argues that in this case the jury was never asked to determine whether Johnson was reckless, and since his recklessness was a question of ultimate fact, and because the issue as submitted assumes his recklessness, it was a direct comment on the weight of the evidence.

Davis argues that the question as submitted conforms with the current preference for broad-form question submission. See Lemos v. Montez, 680 S.W.2d 798, 799 (Tex.1984). In Lemos, the supreme court held that, since the amendment of rule 277 in 1973, broad issue submission has been repeatedly approved as the correct method for jury submission. See Lemos, 680 S.W. 2d at 801; Brown, 601 S.W.2d at 937.

In this case, the instruction submitted by the trial court embodies all of the elements of the theory of negligent entrustment. These elements are: (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; (4) that the driver was negligent on the occasion in question; and (5) that the driver’s [609]*609negligence proximately caused the accident. See Williams v. Steves Industries, Inc., 699 S.W.2d at 571; Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587, 591 (1947).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
770 S.W.2d 606, 1989 WL 60524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lorillard-v-davis-texapp-1989.