Union Transports, Inc. v. Braun
Union Transports, Inc. v. Braun
Opinion of the Court
This suit was brought by Charlie I. Braun, individually and as next friend of his two minor children, Charlotte Braun and James Allen Braun, against Union Transports, Inc. Plaintiffs sought damages for the death of their wife and mother, Haysel Braun, and Charles Richard Braun, their minor son and brother, occasioned by a collision between an automobile belonging to Charlie I. Braun and a transport truck belonging to the defendant. The defendant filed a cross-action against plaintiff Charlie I. Braun for damages alleged to have been sustained to its transport truck and for the complete loss of the full load of crude distillate which it was carrying. The case was tried before a jury which found that Don Woodward, the driver of the defendant’s truck on the occasion in question, was guilty of certain acts of negligence which proximately caused the collision, and that Charles Richard Braun, the driver of the Braun automobile, was not guilty of any of the negligent acts which the defendant alleged were proximate causes of the collision. Based upon the verdict judgment was rendered for plaintiffs and against defendant for a total amount of $129,638.50, and it was decreed that the defendant take nothing by its cross-action. Union Transports, Inc., has brought this appeal. This case and a damage suit filed by Don Woodward against Charlie I. Braun were consolidated and tried together in the court
The collision which is the basis of this suit occurred on July 10, 1956, about twelve miles south of the City of San Antonio on Highway 181, near the intersection of the Adkins-Elmdorf Road. At the time of and just prior to the collision appellant’s truck driver, Woodward, was driving appellant’s truck transport in a northerly direction toward San Antonio with a full load of crude distillate. The Ford automobile belonging to the Brauns was traveling south toward Kennedy. The only occupants of the Braun car were Mrs. Haysel Braun and Charles Richard Braun, both deceased. Woodward, the driver of appellant’s truck, was the only eye witness to the actual collision who was available to testify. As heretofore indicated, the jury found that Woodward was guilty of numerous acts of negligence which were proximate causes of the collision. The specific acts of negligence found against Woodward were: that Woodward at the time of and immediately prior to the collision drove his truck at a rate of speed which was excessive under the circumstances, that he failed to keep a proper lookout, failed to keep the truck under proper control, and that he drove the truck across the center line of the road upon his left-hand side of the road.
It is contended in appellant’s first and second points that the court erred in not sustaining appellant’s motion for an in-' structed verdict and for judgment non obstante veredicto. Appellant contends that there was no evidence of any negligence on the part of Woodward proximately causing the fatal collision. Appellant urges in its first and second points and in numerous other points that there was no evidence to authorize the submission to the jury of any of the special issues inquiring about the alleged acts or that such negligent acts were, as found by the jury, proximate causes of the collision. We cannot agree with appellant’s contentions in these points. .
The rule is well settled that the findings of'a jury and the judgment of a trial court will not be set aside if there is any evidence of probative force in support thereof. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972; Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286; 3-B Tex.Jur. 449, 450.
The statement of facts is voluminous, comprising more than four hundred fifty pages. In order to confine our discussion to a reasonable length, we will attempt to detail the evidence in support of the verdict in as brief and summarized form as possible. Concerning the speed at which Woodward was operating the truck in question, the witness Watson testified that immediately prior to the collision he had been following the truck for several miles as it proceeded northward toward San Antonio. He stated that he did not actually see the collision because the country was hilly and there was a hill to the south of and between him and the point of the collision which obstructed his view. Watson was operating a Cadillac automobile and testified that he had been driving for several miles at a steady, constant speed of 65 to 70 miles per hour; that he first noticed the truck when it was about a mile ahead of him and about two or three miles south of the point of the collision. He stated that from the time he first saw the truck until the time of the collision he had been gaining on the truck slowly and that in his opinion the truck was traveling five to ten miles per hour slower than he was. The effect of Watson’s testimony was that in his opinion Woodward was driving the truck at a speed of 55 to 65 miles per hour. We cannot agree with appellant’s contention that Watson’s testimony concerning the speed of the truck over the two or three mile stretch that he followed it constituted such an uncertain premise as- to amount to no evidence at all. Appellant’s complaint is applicable to the weight of this testimony rather than to its probative value.
There was evidence to the effect that at the time of the collision the Ford auto
In addition to the above evidence concerning the speed of the truck Woodward testified that the truck was equipped with a tacometer which was a device for making a written record of its speed at any given time. Appellant failed to produce the tacometer with its recorded evidence of the speed of the truck or to explain in any manner its failure to produce same in evidence. The fact that appellant failed to produce the tacometer or to explain the failure to do so tends to strengthen the probative force of other, evidence bearing upon the question of the speed of the truck, and is of itself of some probative force on the question. Hazelrigg v. Naranjo, Tex.Civ.App., 184 S.W. 316 (Writ Ref.) ; State v. Gray, 141 Tex. 604, 175 S.W.2d 224. In our opinion the evidence supported the findings of the jury and the judgment of the court bearing upon the issues of the speed of appellant’s truck as being in excess of 45 miles per hour, as being excessive under the circumstances, and as a proximate cause of the collision. Biggers v. Continental Bus System, Inc., Tex., 303 S.W.2d 359.
The jury found that immediately prior to the collision Woodward was operating appellant’s truck across the center line of the highway and upon his left-hand side of the road. The truck was loaded with crude distillate at the time. After the collision there was a trail of distillate three or four feet over the center line and on the west side of the highway, which was Woodward’s left side of the road, for over three hundred feet before it terminated near the point of the collision where there were several large puddles which discolored the pavement. Both the truck and the Ford automobile, although badly torn up and scattered, came to rest on the west side of the road. The witness Black testified that he was following immediately behind the Ford automobile; that the Ford was at all times traveling- in its proper lane of traffic on the west side of the highway; that he did not actually see the collision because the day was hot and he took his eyes off the road for a moment to wipe his forehead and at that instant the collision occurred. He said that after the collision he saw the truck and trailer turning over at which time they were completely on the west side of the highway; that he saw them come to rest on that side of the highway partly on the shoulder and partly on the pavement. Black was so close to the scene of the collision that distillate from the trailer sprayed his car. There was distillate or fuel oil around the trailer where it came to rest. Sometime after the collision crude distillate was still leaking out of the trailer and running down the side of the highway.
The damage to the front end of the two vehicles supports the conclusion that the left front fender and left side of the bumper of the truck struck the right front portion of the Ford automobile. Also indicative of this fact was evidence to the effect that blue paint similar to that on the Ford car was found on the front bumper of the truck. The physical facts also indicate that the blow to the Ford proceeded from the right to the left side of that automobile tearing and shearing the motor loose. There was evidence to the effect that the bumper of the truck was higher off the ground than the frame of the Ford car, and the frame did not appear to be materially damaged. The motor and radiator and other heavy objects
We also overrule appellant’s fifty-second point in which it is urged in effect that the court erred in overruling its objections to Dr. Tonn’s testimony based upon the assumption that the speed of appellant’s truck at the time of the collision was 50 miles per hour. Appellant contends that it was error to allow calculations based upon an assumed speed of fifty miles per hour because there was no evidence of probative force to show the truck was traveling in excess of the speed limit of 45 miles per hour at the time of the collision. As previously noted there was in our opinion ample evidence to support the conclusion that appellant’s truck was being operated in excess of 45 miles per hour or even as much as sixty to 65 miles per hour.
The evidence is amply sufficient to present fact issues for jury determination on the questions of the speed at which Woodward was operating the truck, whether or not the truck was being operated on the wrong side of the highway, the failure of Woodward to keep a proper lookout and to keep the truck under proper control. The opinion testimony of Watson concerning the speed of the truck was based upon his
In appellant’s 34th and 35th points it is contended that the court erred in allowing the plaintiffs to introduce, pver objection, plaintiffs’ exhibit number ten which was a copy of a voluntary waiver of drivers ■license form bearing the signature of Don Woodward and dated July 18, 1956. Appellant also complains of the admission of testimony concerning • proceedings before the Texas Department of Public Safety with regard to the cancellation of Woodward’s drivers license. The objection made by appellant to exhibit number ten and the evidence in connection therewith was that the matter occurred after the accident in question, that it was a matter between Woodward and the Department of Public Safety and did not prove any facts about the accident, that it was prejudicial and irrelevant and immaterial to any issues in the case.
Appellant’s 34th and 35th points are overruled. Material to a consideration of these points is the fact that this suit by the Brauns against Union Transports, Inc., was consolidated and tried together with the suit by Don Woodward against Charlie I. Braun, in which Woodward sought damages for alleged personal injuries sustained by him in the sum of $50,000. Woodward had testified concerning the damages and injuries alleged in his pleadings. He testified that he did not work for four and one-half months after July 10, 1956, and that the only reason he did not work during that period was because of the injuries which he sustained in the accidental collision with the Braun automobile. In this connection Woodward admitted in answer to questions from ap-pellees’ attorney that he had been examined by Dr. Omer Roan the day after the accidental collision and that x-ray pictures taken under the supervision of Dr. Roan did not show any physical injury or damage to Woodward at that time. It was in this condition of the record that appellees sought to obtain an admission from Woodward that the reason he did not work during the period in question was not because of any claimed injuries but because his drivers license had been cancelled and that he was prohibited by law from driving his truck. Woodward admitted that his license was cancelled on July 18, 1956, but he denied that that was the reason he did not work. Woodward was shown and admitted his signature on the waiver of drivers license form and thereupon that instrument was introduced in evidence as plaintiffs’ exhibit number ten over the objection of Woodward and of appellant herein.
Exhibit number ten and the evidence in connection therewith were clearly admissible in the suit by Woodward against appellee Charlie I. Braun; no request, however, was made to limit the application of ■the evidence. Under these circumstances appellant cannot now complain of the admission of exhibit number ten and the evidence in connection therewith. Sears, Roebuck & Co. v. Jones, Tex.Civ.App., 303 S.W.2d 432 (RNRE); Armstrong v. Marshall, Tex.Civ.App., 146 S.W.2d 250; King v. Morris, Tex.Com.App., 1 S.W.2d 605.
Usually in a tort case findings of negligence on the part of a defendant or its employee which is a proximate cause of the plaintiff’s injuries and that plaintiff is not guilty of any act of contributory negligence are sufficient to support a judgment for the plaintiff. However, the doctrine of imminent peril or sudden emergency is sometimes invoked as a defense to a charge óf negligence. In the case of Goolsbee v. Texas & N. O. R. Co., 150 Tex. 528, 243 S.W.2d 386, 387, Chief Justice Hickman, speaking for our Supreme Court, discussed this question at length and stated as follows:
“Much is written in the briefs on the subject of ‘Liability under the doctrine of imminent peril.’ It is respondent’s theory that ‘the doctrine of imminent peril is a principle or basis of liability.’ An expression in this court’s opinion in Beck v. Browning, 129 Tex. 7, 101 S.W.2d 545, seems to lend support to the view that the doctrine of imminent peril is a basis of liability. While we fully agree with the decision in that case, we are unwilling to accept respondent’s theory as an established principle in this court. The doctrine of imminent peril is one which may be invoked to relieve a party of the consequences of his conduct, which otherwise would be held negligent. It is most often invoked as a defense to a charge of contributory negligence. International & G. N. R. R. Co. v. Neff, 87 Tex. 303, 28 S.W. 283; Jackson v. Galveston, H. & S. A. Ry. Co., 90 Tex. 372, 38 S.W. 745; Fort Worth & D. C. Ry. Co. v. Kimbrow, 131 Tex. 117, 112 S.W.2d 712; Foster v. Woodward, Tex.Civ.App., 134 S.W.2d 417, error refused. But it properly may be invoked as a defense to a charge of primary negligence. Dallas Ry. & Terminal Co. v. Young, Tex.Civ.App., 155 S.W.2d 414, error refused; Schroeder v. Rainboldt, 128 Tex. 269, 97 S.W.2d 679, 684 (approval of lower court’s holding permitting submission of issues on defendant’s sudden emergency.) In either instance it is invoked to lower the legal standard of care which a party must exercise to the point where conduct which otherwise might be regarded as negligent or contributorily negligent is not so regarded.” (Emphasis ours.)
The evidence relied upon by appellant to raise the issue of sudden emergency is the following testimony by its truck driver Woodward:
“A. Well, I was coming in with that load and when I came over the grade I seen this car. It was a good ways in front of me and * * * I don’t know * * * it was not a hill but up a little grade and I don’t know whether he passed those two cars, or not, but he was a little on the wrong side but he came back over, and it looked like everything was going to be all right and then when he came back over he straightened up. I just let up on the gas and just before he got to me it looked * * * like. I don’t know what happened. He just cut right into me and I jerked the wheel and when he did that I jerked the hand brake. The hand brake will lock the trailer wheels; and there was a stop sign there at the intersection and a car was at that stop sign. I had to think about him too. I did miss a head-on but I could not get out of his way and he was five or • five and a half feet over the center line when he collided.”
Based upon the verdict in answer to questions concerning the loss sustained by each of appellees as a result of the death of Mrs. Haysel Braun, judgment was entered for Charlie I. Braun in the sum of $65,000, for Charlotte Braun in the sum of $25,000.00 and for James Allen Braun in the sum of $25,000. Appellant contends that the answers to the damage issues are so highly excessive and unreasonable as to show that the jury was motivated by passion and prejudice and an utter disregard of the evidence and that the court erred in entering judgment on the verdict. Appellant also complains of the portion of the judgment based upon the verdict granting Charlie I. Braun $10,000 for the death of his son, Charles Richard Braun.
The mere fact that the verdict is large is not conclusive that it is the result of passion, prejudice, sympathy or other considerations not found in the evidence. 25 C.J.S. Death § 116, p. 1270. The rule concerning excessiveness of a verdict in such cases is set out in 13 Tex.Jur. 271, 272, as follows:
“It is a well settled general rule that where the law furnishes no legal measure of damages, and they are un-liquidated, the amount to be awarded rests largely in the discretion of the jury; and unless the award is so large as to indicate that it is the result of passion, prejudice or corruption, or that the evidence has been disregarded, their verdict is conclusive and will not be set aside as excessive either by the trial court or on appeal.”
The evidence shows that Mrs. Haysel Braun was 37 years of age at the time of her death; she had been married to appellee Charlie I. Braun since November, 1936. Prior to her accidental death Mrs. Braun had a life expectancy of 38.41 years and appellee Charlie I. Braun had a life expectancy of 31.17 years. Under these facts Braun’s right to recovery was limited to and based upon his own life expectancy. Humble Oil & Refining Company v. Ooley, Tex.Civ.App., 46 S.W.2d 1038.
The evidence showed that Mrs. Braun was a good housewife and mother and that everything in the home was under her charge and supervision; that the entire family worked in the home and that she supervised the work; that for several
As previously indicated, the life expectancy of Charlie I. Braun was 31.17 years. If Mrs. Braun had lived and continued to earn as much as $1,100 per year during this period, the total amount would have been $34,287.00. If she again earned as much as $1,300 a year the total would, of course, be more. The earning capacity of the deceased, however, is not the sole basis for damages in such cases. Charlie I. Braun was also entitled to recover the proved value of the personal services of the deceased. In the case of Dallas Ry. & Terminal Co. v. Bishop, Tex.Civ.App., 203 S.W.2d 651 (RNRE), it was held that $20,-000 damages to a 64 year old husband for the loss of his 62 year old wife’s services as housekeeper because of her death was not excessive in view of her life expectancy of ten years or more. In that case it was held in effect that approximately $2,-000 per year was not excessive for the loss of the services of the housewife. From the above it appears that damages found to have been sustained by Charlie I. Braun by reason of the death of his wife is not wholly lacking in support of evidence. It is not completely out of line with awards upheld in other cases. Although large, we cannot say that it is so clearly excessive as to indicate passion or prejudice. We do not feel that it can be said that the jury or the trial court was guilty of an abuse of discretion in. finding and entering judgment for Charlie I. Braun in the sum of $65,000. Also see Rowan & Hope v. Valadez, Tex.Civ.App., 258 S.W.2d 395 (RNRE).
We are likewise of the opinion that the verdict and the judgment awarding Charlie I. Braun $10,000 for the death of his 18 year old son, Charles Richard Braun, was not so excessive as to show an abuse of discretion. The evidence showed that Charles Richard Braun was an honor student making the fourth highest grade in his high school class. His graduation from high school was just a few weeks prior to his death and he had received a scholastic scholarship to Shriner Institute. The evidence indicated that he had always worked when possible. Shortly before his death he had been employed and paid at a rate of $25 per week. There was evidence to the effect that he was capable of earning from 75‡ to $1 per hour. Under this evidence it is our opinion that the $10,000 damages awarded by the jury is not excessive. Texas & New Orleans R. Co. v. Hanson, Tex.Civ.App., 271 S.W.2d 309 (Writ Dis.).
The judgment based upon the jury verdict awarded Charlotte Braun $25,000 as the amount of the pecuniary value of the loss sustained by her as a result of the death of her mother. Under the court’s definition the term “pecuniary value of the loss” included contributions as well as loss of nurture, care, education and advice which Charlotte Braun would in all reasonable possibility receive during her minority from her mother had her mother lived. The evidence indicated that Charlotte Braun was seventeen years of age on
James Allen Braun was fifteen years of age and was living at home with his parents at the time of his mother’s death. The jury also awarded him $25,000 and judgment was entered accordingly. Based upon Mrs. Braun’s established earning capacity she would have earned $6,600 during the remaining years of James Allen Braun’s minority. The $25,000 awarded to him exceeds the total expected earnings of his mother during the remaining years of his minority by $18,400.
It is urged by appellees that the verdict and judgment in favor of Charlotte Braun and James Allen Braun is supported by the evidence because of their loss not only of the opportunity to participate in the earnings of their mother but also because of their loss of the help, guidance, admonition, control and love and affection of their Christian mother. It is an accepted principle of law as stated in Texas & N. O. R. Co. v. Landrum, Tex.Civ.App., 264 S.W.2d 530, 539 (RNRE), that:
“Neither the pecuniary benefits the children might have reasonably expected to receive from their mother, nor the value to them of her nurture, care, education and guidance can be measured in dollars and cents with either mathematical or legal certainty. For this reason the assessment of damages in this kind of case is a matter peculiarly within the province of the tryers of the facts, and unless a jury’s award of damages should' be so clearly excessive as to amount to an abuse of discretion, we feel that it should not be disturbed.”
In the above cited case awards of $16,-000 to a thirteen year old daughter and $16,000 to a twelve year old son for the death of their mother who was regularly 'employed for about $300 per month and who spent a large amount of her earnings on her daughter and son were held not excessive. We cannot agree with appellees’ contention that the Landrum case supports the verdict and judgment in the instant case. In the Landrum case the mother earned about $300 per month. In this case the mother earned about $100 a month. In the Landrum case the children were 12 and 13 years of age, having 8 and 9 years of remaining minority. In this case the children were 15 and 17 years of age, or an average of about three and one-half years older than the Landrum children, and consequently that many less years of minority. The Landrum children were awarded $16,000 each, or a total of $32,-000 for the loss of their mother during the eight or nine remaining years of their minority. Their mother’s earnings during the nine year period before the youngest child became of age could reasonably be expected to be a total of $32,400. The Braun children were awarded $25,000.00 each, or a total of $50,000.00, for the loss of their mother during the remaining four to six years of their minority. Their mother’s earnings during the six year period, before the youngest of them reached majority could reasonably be expected to be a total of not more than $7,200. The reasonably expected earnings of the mother of the Landrum children amounted to more than the judgment, without regard to the portion awarded to them by reason of the
After careful consideration of the evidence we have concluded that the award of $25,000 to each of the minor appellees is excessive. A daughter’s loss of the nurture, care and advice of her mother is usually greater than the loss of a son. We are convinced that the verdict in this respect substantially exceeds any rational appraisal of the damages to Charlotte Braun in the sum of $12,500 and exceeds such an appraisal of the damages to James Allen Braun in the sum of $12,500. If each of these appellees will promptly file a remit-titur, the judgment will be reformed accordingly, otherwise, the cause as to them will be remanded for'a new trial.
In numerous points appellant complains of the action of the court in overruling its exceptions to appellees’ pleadings concerning gross negligence and exemplary damages, of evidence admitted over its objection bearing upon the question of gross negligence and of special issues submitted to the jury on the question. The judgment awarded no exemplary damages. The error, if any, concerning the matters complained of is therefore harmless unless shown to be of such a nature as to adversely affect appellant’s rights or prejudice the jury in its consideration of other issues in the case which are the basis of the judgment. Appellant urges that the matters complained of were prejudicial and harmful and culminated in passion and prejudice on the part of the jury in its verdict as shown by the large award of damages. The amount of the verdict, even though large, does not without other proof show bias or prejudice on the part of the jury. World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962.
We cannot agree with appellant’s Contention that the court erred in overruling exceptions to appellees’ pleadings concerning gross negligence and exemplary damages. Appellees alleged numerous acts of negligence on the part of appellant’s truck driver, Woodward, and alleged gross negligence in that he was operating the truck at a speed in excess of 45 miles per hour, at a speed which was excessive under the circumstances, that he failed to keep a proper lookout, failed to keep the truck under proper control and that he drove the truck on the wrong side of the road. Such action on the part of Woodward was alleged to constitute negligence and gross negligence. In. the case of Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 200, it is held that a combination of acts of ordinary negligence may, under certain circumstances, amount to gross negligence. Judge Griffin, speaking for the majority of our Supreme Court, stated:
“This is not a case of excessive speed alone having caused the accident, and thus being a case of ordinary negligence, but from all the facts and circumstances of this case, as shown by the evidence, we think the jury had a right to find the defendant, Lochausen, guilty of gross negligence.”
Appellees’ pleadings concerning negligence and gross negligence on the part of appellant alleged that Don Woodward was, at the time of and prior to the collision, an incompetent, reckless, careless driver of motor vehicles; that in particular Woodward was, because of recklessness and carelessness, incompetent to operate the 45 foot long and dangerously heavy transport truck belonging to appellant; that Woodward had been involved in numerous accidents and on numerous occasions had violated traffic laws of the State of Texas, thereby demonstrating his incompetency; that he had a general reputation as an incompetent, reckless and careless driver; that his incompetency, recklessness, and carelessness and general
It is stated in 13 Tex.Jur. 379, 383, as follows:
“The plaintiff, in order that a recovery of exemplary damages may be sustained, is required to show, not merely that the defendant could have or ought to have foreseen and prevented the loss or injury of which the plaintiff complains, but that he acted intentionally or wilfully, or with a degree'of ‘gross negligence’ which approximates a fixed purpose to bring about the injury of which the plaintiff complains. The mental factor is also described in the reports by the terms ‘malice/ ‘fraud,’ ‘oppression/ ‘recklessness/ and the like. Regardless of the expression used to describe it, the purpose or intention of the defendant is determinative of his liability for exemplary damages. Unless there is evidence tending to show that he acted with the necessary degree of knowledge that the injury would result, a verdict for exemplary damages cannot be sustained. The degree in which the defendant foresaw or anticipated the injury to the plaintiff may, doubtless, vary somewhat in different cases, ranging, as appears from the several descriptive terms, between premeditated purpose to bring about the injury and the state of mind which is described by ‘recklessness’ or ‘gross negligence’.”
In Missouri Pacific Ry. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408, 411, gross negligence was defined as follows:
“Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise'the belief that the act or' omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.”
In the case of Rowan v. Allen, 134 Tex. 215, 134 S.W.2d 1022, it was held that heedlessness or reckless disregard of the rights of others conveys the same meaning as the term “gross negligence”. See also Hamilton v. Perry, Tex.Civ.App., 109 S.W.2d 1142. In the case of Morton Salt Company v. Wells, 123 Tex. 151, 70 S.W.2d 409, it was held that an employer who had the duty to exercise ordinary care to provide its employees with reasonably safe appliances with which to perform their duties- was guilty of gross negligence in that the evidence showed that for years the company had provided for the use of its employees a dangerous machine with which to work.
“Other courts hold that to make the master liable in any case to exemplary damages for the fraud, malice, gross negligence, or oppression of the servant, it should be alleged and proven that the acts of the servant which constitute the fraud, malice, gross negligence, or oppression were committed by the direction or authority of the master, or that the master has ratified and adopted such acts as his own, or that he has participated in them, or that the master has been guilty of negligence in the selection and employment of the servant whose acts constitute the fraud, malice, gross negligence, or oppression complained of.”
In the case of Hays v. Houston, G. N. R. Co., 46 Tex. 272, it was held that carelessness in the selection of employees by a corporation made it liable for exemplary damages. Also in the case of Chronister Lumber Co. v. Williams, 116 Tex. 207, 288 S.W. 402, it was held that a master or principal was liable for exemplary damages because of the act of an agent if the agent was unfit and the principal was reckless in employing him. Also see King v. McGuff, 149 Tex. 432, 234 S.W.2d 403; Howard v. Bennett, 141 Tex. 101, 170 S.W.2d 709, 712; 15 Am.Jur. 729. In 25 C.J.S. Damages § 125, p. 735, in considering the liability of the master for exemplary damages because of an act of his agent, it is stated:
“Further, a master is liable for the acts of his servant done in the scope of his employment where he has employed or retained a servant of known incompetence, recklessness, or bad character.”
In our opinion appellees’ pleadings were sufficient to present the issue of gross negligence and the trial court did not err in overruling appellant’s objections and exceptions thereto.
We also hold that the court did not err in overruling appellant’s objections and exceptions to appellees’ pleadings and proof of three prior traffic violations by Woodward. They were material on the issue of gross negligence. Two of these violations, shown by the pleadings and proof to have occurred in January and May of 1956, were not objected to when introduced in evidence. Woodward’s third plea of guilty and conviction for the offense of aggravated assault with a motor vehicle ori December 15, 1945, was objected to by appellant when introduced in evidence on the ground that it was foreign to any issue in the case and that it was too remote. The introduction of these prior offenses on the part of Woodward were not for the purpose of impeaching his credibility as a witness. They were introduced and were admissible in connection with the issue of gross negligence on the part of appellant, upon the theory that Woodward was a reckless, careless and incompetent driver and that appellant knew, or should have known, thereof. McIntire v. Sellers, Tex.Civ.App., 311 S.W.2d 886. The question of remoteness, even in cases where a prior conviction is introduced for impeachment purposes, is to a great extent within the discretion of the trial court In our opinion the
Special issues numbers 12, 13, 14 and 15 of the charge inquired of the jury whether Don Woodward was incompetent to drive the transport truck which he was operating on July 10, 1956, whether appellant’s superintendent, Bert Pope, knew that Woodward was incompetent to operate the truck, whether appellant was grossly negligent in entrusting the truck to Woodward for operation, and whether Charlie I. Braun was entitled to exemplary damages from appellant. The jury made affirmative answers to all of these questions and in answer to special issue number 31 found that Charlie I. Braun should be awarded as exemplary damages the sum of $75,000. It was also found by the jury that Woodward suffered no damages as a result of injuries' sustained in the collision.
Appellant strongly urges that the above facts and circumstances in the trial of the case considered together with the admission of inadmissible evidence and improper pleadings bearing upon the issue of gross negligence, the large awards for actual damages and the attempted award of $75,-000.00 exemplary damages conclusively show passion and prejudice on the part of the jury constituting reversible error. Appellant’s points bearing upon this phase of the case are overruled. These points are based upon appellant’s contention that the court erred in overruling its objections and exceptions to the pleadings and evidence. Appellees’ pleadings were not subject to appellant’s objections and exceptions, but on the contrary were sufficient to raise the question of exemplary damages and gross negligence. The evidence concerning Woodward’s pri- or convictions for traffic violations was admissible and not subject to appellant’s objections. The error in the submission to the jury of special issues 12 through 15 bearing upon the qu'estion of gross negligence over appellant’s objections that there was no support in the evidence is harmless. No . part of the judgment is based upon the an-. swers to said issues. We are unable to say that there was an abuse of discretion in the damages awarded except in the awards to the minor appellees, Charlotte Braun and James Allen Braun. Under these circumstances the fact that the jury awarded each of the minor appellees $25,-000, which was excessive by $12,500 and by its answer to special issue number 31 attempted to award to Charlie I. Braun $75,000 as exemplary damages, which likewise is not included in the judgment does not require that the judgment as a whole be reversed.
We have carefully, considered the record and all points presented and find no reversible error except as noted herein. The judgment is therefore affirmed except the' portions thereof awarding the minor ap-pellees $25,000 each as damages for the loss’ of their mother. The $25,000 award to Charlotte Braun is excessive in the sum of $12,500. The $25,000 award to James Allen Braun is excessive in the sum of $12,500. If each of these appellees will promptly file a remittitur, the judgment will be reformed accordingly; otherwise, the cause as to them will be remanded for a new trial.
070rehearing
On Motion for Rehearing
We have carefully considered appellant’s motion for rehearing and find that it should be, and it hereby is, in all things overruled, except as hereinafter stated. Appellant urges in its motion for rehearing, as it did in its original brief, that $65,000 damages awarded to Charlie I. Braun for the death of his wife was excessive and that we erred in not so holding. After a re-examination of the record and authorities, we have reached the conclusion that appellant’s contention in this respect is well taken and that the $65,000 award to Charlie I. Braun exceeds a rational appraisal of his damages for the death of his wife by $20,000. Al
060remittitur
Supplemental Opinion On Filing of Remittitur
On August 1, 1958, this court by its opinion suggested that if the appellees Charlotte Braun and James Allen Braun would each promptly file a remittitur of $12,500, the judgment as to each of said appellees would be reformed accordingly, and, as reformed, affirmed. On August 8, 1958, Charlie I. Braun, as next friend of Charlotte Braun and James Allen Braun, filed the suggested remittiturs. On October 24, 1958, this court on motion for rehearing suggested that if Charlie I. Braun would promptly file a re-mittitur of $20,000, the judgment would be, as to him, reformed and affirmed. On October 30, 1958, Charlie I. Braun filed the suggested remittitur of $20,000.
Accordingly the judgment of the trial court is reformed in conformity with said remittiturs and, as so reformed, is affirmed.
One-third of the costs of this appeal will be taxed against appellees herein and two-thirds taxed against appellant.
Motions for rehearing may be filed by any of the parties hereto within fifteen days after, this date.
Reference
- Full Case Name
- UNION TRANSPORTS, INC., Appellant, v. Charlie I. BRAUN Et Al., Appellees
- Cited By
- 48 cases
- Status
- Published