William Schmieding and Edna Schmieding v. Mission Petroleum Carries, Inc.

Court of Appeals of Texas

William Schmieding and Edna Schmieding v. Mission Petroleum Carries, Inc.

Court of Appeals of Texas·Decided September 18, 2012·No. 07-11-00151-CV·Published

Opinion

NO. 07-11-0151-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

SEPTEMBER 18, 2012

_____________________________

EDNA SCHMIEDING and WILLIAM SCHMIEDING,

Appellants v.

MISSION PETROLEUM CARRIERS, INC.,

Appellee _____________________________

FROM THE 274TH DISTRICT COURT OF COMAL COUNTY;

NO. C2008-1013C; HONORABLE DIBRELL WALDRIP, PRESIDING _____________________________

Memorandum Opinion _____________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Edna Schmieding and William Schmieding (the Schmiedings) appeal from a

judgment denying them recovery from Mission Petroleum Carriers, Inc. (Mission). They

had sued Mission for injuries arising from an automobile collision with a Mission

employee. When asked to determine culpability, the jury found that the employee was

not negligent but that Mission was. However, the trial court entered judgment on behalf of Mission upon concluding that it could not be negligent if its employee was not

negligent. The Schmiedings appealed the judgment via seven issues. We affirm.

Issue One – Negligent Retention

We are first told that the trial court erred because it refused to uphold the verdict

on the basis that Mission negligently hired, supervised or retained the employee

involved in the accident. Mission argues that the trial court had no option but to absolve

it from liability given the finding that its employee was not negligent. Mission is correct,

and we overrule the issue.

Before Mission could be found liable for negligently hiring, retaining, or

supervising its employee, the employee must first engage in actionable misconduct.

See Wansey v. Hole, No. 11-0348, 2012 Tex. LEXIS 559 (Tex. June 29, 2012) (stating

that: “Though we have never expressly set out what duty an employer has in hiring

employees, or said that a negligent hiring claim requires more than just negligent hiring

practices, there is a broad consensus among Texas courts that such a claim requires

that the plaintiff suffer some damages from the foreseeable misconduct of an employee

hired pursuant to the defendant's negligent practices”); Brown v. Swett & Crawford of

Tex., Inc., 178 S.W.3d 373, 384 (Tex. App.–Houston [1st Dist.] 2005, no pet.) (stating

that to prevail on a claim for negligent hiring or supervision, the plaintiff is required to

establish not only that the employer was negligent in hiring or supervising the employee,

but also that the employee committed an actionable tort against the plaintiff); Gonzales

v. Willis, 995 S.W.2d 729, 739 (Tex. App.–San Antonio 1999, no pet.), overruled in part

on other grounds in Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447-48

(Tex. 2004) (stating that an employer cannot be held liable for negligently hiring an

2 employee unless the employee committed an actionable tort); Mackey v. U.P. Enters.,

Inc., 935 S.W.2d 446, 459 (Tex. App.–Tyler 1996, no writ) (stating that an employer has

a duty to adequately hire, train, and supervise employees and the negligent

performance of those duties may impose liability on an employer if the complainant’s

injuries are the result of the employer’s failure to take reasonable precautions to protect

the complainant from misconduct of its employees); see also TXI Transp. Co. v.

Hughes, 306 S.W.3d 230, 240 (Tex. 2010) (concluding that negligent hiring should have

a similar requirement to negligent entrustment cases, which require that the employee's

negligent conduct harm the plaintiff).

Issue Two – Negligence Per Se

Next, the Schmiedings contend that the trial court erred in failing to instruct the

jury that the employee’s conduct was negligence per se. Mission argues that the motor

vehicle statute relied upon by its opponent, i.e. TEX. TRANSP. CODE ANN. § 545.151(a)

(West 2011), involves obeying traffic control signals at an “intersection,” and since the

collision did not occur at such a location, it could not provide the foundation for

negligence per se. We agree with Mission and overrule the issue.

Per § 545.151, “[a]n operator approaching an intersection (1) shall stop, yield,

and grant immediate use of the intersection: (A) in obedience to an official traffic-control

device, including a stop sign or yield right-of-way sign.” Id. § 545.151(a) (emphasis

added). Furthermore, an “intersection” is defined as the “common area at the junction

of two highways . . . .” Id. § 541.303(a) & (b). The collision at bar did not occur within

the “common area at the junction of two highways,” and the Schmiedings do not argue

otherwise in their brief. Thus, the statute is inapplicable to the situation at bar.

3 Issue Three – Res Ipsa Loquitur

The Schmiedings next argue that the trial court should have instructed the jury on

res ipsa loquitur. Mission contends that 1) the complaint was not preserved and 2) the

theory did not apply since res ipsa involves situations wherein the event or injury can

only occur because someone was negligent and auto accidents can occur even in the

absence of negligence. We overrule the issue.

The record discloses that at the time the trial court entertained objections to its

charge, none were made by the Schmiedings about the absence of an instruction on res

ipsa loquitur. This silence failed to comply with the directive that one must preserve

charge error by “point[ing] out distinctly the objectionable matter and the grounds of the

objection.” TEX. R. CIV. P. 274; see Carousel's Creamery, L.L.C. v. Marble Slab

Creamery, Inc., 134 S.W.3d 385, 404 (Tex. App.–Houston [1st Dist.] 2004, pet. dism'd)

(stating that merely objecting does not satisfy Rule 274 unless “the defect relied upon

by the objecting party and the grounds of the objection are stated specifically enough to

support the conclusion that [the] trial court was fully cognizant of the ground of

complaint and deliberately chose to overrule it”). Since no objection was lodged by the

Schmiedings, then they failed to preserve error as mandated by Rule 274.

Issue Four – Exclusion of Dr. Uribe’s Testimony

Next, the Schmiedings contend the trial court erred by not allowing an expert

witness, Dr. Eduardo Uribe, to testify that Mission’s employee fell asleep while driving.

In turn, Mission posits that the trial court did not abuse its discretion by excluding the

testimony since it failed to exclude alternate theories of causation and the testimony

was unreliable. We overrule the issue.

4 The trial court conducted a hearing to assess Dr. Uribe’s qualifications and

determine the content of his testimony. Thereafter, it said:

I think he can say -- he can exclude fainting or loss of consciousness because of leg injuries or loss of blood. He does go on to clarify that on page 19 as well.

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