Adams v. Morris

• Decision Date: 28 June 1979
• Docket Number: No. 1198,1198
• Citation: 584 S.W.2d 712
• Parties: Kenneth ADAMS, Appellant, v. Carl M. MORRIS et al., Appellees.
• Court: Texas Court of Appeals

Page 712

584 S.W.2d 712

Kenneth ADAMS, Appellant, v. Carl M. MORRIS et al., Appellees.

No. 1198.

Court of Civil Appeals of Texas, Tyler.

June 28, 1979.

David E. Leuders, Houston, for appellant.

David O. Cluck, Larry D. Thompson, Lorance, Thompson & Wittig, Edward Murr, Michael P. Graham, Baker & Botts, Houston, for appellees.

SUMMERS, Chief Justice.

This is a case in which recovery is sought for personal injuries resulting from an automobile-pedestrian collision.

In the early evening of November 25, 1974, at approximately 7:00 p. m., John Gonsoulin and Kenneth Adams, both age 17, were riding in an automobile owned by the Adams family. The two boys, both employed by a nearby hospital, went for the drive in order to smoke a marijuana cigarette during their work break. After Adams had driven but a block or two from the hospital, he switched places with Gonsoulin so that he could eat a box of chicken and drink a coke which he had purchased earlier. Gonsoulin had briefly driven the Adams vehicle, a 1973 Volkswagen, on only one other occasion in a parking lot; therefore Adams reviewed the gears with Gonsoulin. The two boys then proceeded to drive through a residential area with Gonsoulin operating the automobile and Adams in the right front seat. The posted speed limit was 20 miles per hour, and street signs warned drivers of children playing in the neighborhood.

As Adams and Gonsoulin drove through the residential area, Adams spilled his coke between his legs and onto the seat. With the box of chicken in one hand and the coke in the other, Adams stood up and directed Gonsoulin to grab a napkin and wipe off the seat. As they attempted to clean up the spill, neither Gonsoulin nor Adams was paying any attention to their direction of travel. It is undisputed that Adams did not request Gonsoulin to stop the vehicle or reduce its speed. The vehicle drifted to the left, crossed the street, jumped the curb, and struck Scott and Sheri Morris as they played in their yard. The automobile struck the curb with sufficient force to blow a tire and travel another 108 feet before coming to a stop. Scott, age 9, and Sheri, age 10, sustained serious injuries.

Scott and Sheri Morris brought suit through their next friend, Carl M. Morris, their father who also sued individually, against Gonsoulin and Adams alleging that each defendant was guilty of negligence and that their negligent acts and omissions were the proximate causes of plaintiffs' injuries. After suit had been filed, Gonsoulin entered into a compromise settlement agreement with plaintiffs. In accordance with the terms of such settlement, the trial court, on May 18, 1976, severed plaintiffs' cause of action against Gonsoulin from the cause of action against Adams and rendered judgment in favor of plaintiffs against Gonsoulin in the amount of $350,000.00. The plaintiffs have continued to prosecute their cause of action against Adams. Subsequently, Adams filed a third-party action against Gonsoulin seeking indemnity and/or contribution, and the case proceeded to trial in this posture.

In response to the special issues submitted, the jury found both Gonsoulin and Adams to have been guilty of negligence. The jury found that Gonsoulin failed to keep such a lookout as would have been kept by a person using ordinary care, was driving at a greater rate of speed than a person using ordinary care would have driven, and failed to make such application of the brakes as would have been made by a person using ordinary care. The jury also found that such acts and omissions were a proximate cause of the occurrence in question. (Special Issues Nos. 1-6) In addition, the jury found that Adams diverted the attention of the driver from the road, instructed the driver to assist in cleaning the spilled drink while the driver was operating the vehicle, failed to request the driver to stop the car while the spilled drink was being cleaned up, and failed to request the driver to reduce the speed of the vehicle. (Special Issue No. 7) Such acts and omissions on the part of Adams were found by the jury to have constituted negligence which was a proximate cause of the occurrence in question. (Special Issues Nos. 8 and 9) The jury also found that after Adams had diverted the driver's attention from the road, Adams failed to keep such a lookout as would have been kept by a person using ordinary care in the same or similar circumstances and that such failure was a proximate cause of the occurrence in question. (Special Issues Nos. 10 and 11) Finally, the jury determined that 60% Of the negligence was attributable to Gonsoulin and 40% Of the negligence was attributable to Adams. (Special Issue No. 12) The jury refused to find that on the occasion in question, Gonsoulin was driving the vehicle under the influence of marijuana. (Special Issue No. 14)

The total damages found by the jury in regards to the injuries sustained by Scott Morris were $2,290,000.00. The elements of damage which could be considered by the jury were physical pain and mental anguish, physical impairment, and reasonable compensation for the necessary medical expenses, hospital care, nursing services, medicine, and physician fees. These elements included both those required or suffered in the past and those which in reasonable probability will be required or suffered in the future. In addition, the jury could consider Scott Morris' loss of earning capacity which in reasonable probability will be suffered in the future after reaching age 18. In regards to the injuries sustained by Sheri Morris, the jury found damages totaling $165,000.00. The elements of damage which could be considered by the jury were physical pain and mental anguish suffered in the past and which, in reasonable probability, will be suffered in the future and disfigurement. In addition, the jury could consider reasonable compensation for necessary medical expenses, hospital care, nursing services, medicine, and physician fees which may have been required in the past or which will, in reasonable probability, be required in the future.

Upon motion by plaintiffs, the trial court reduced the total damages assessed by the jury from $2,455,000.00 to $2,370,400.00. The trial court then rendered judgment that plaintiffs recover $948,160.00 from Adams (40% Of $2,370,400.00). From this adverse judgment Adams, appellant, has perfected this appeal predicated upon twenty points of error.

The primary question raised by appellant on appeal is whether appellant, a passenger in the vehicle at the time of the accident here in question, breached any duty owed by him to plaintiffs. Appellant contends that he had no duty to request the driver to stop the car or slow down while the spilled drink was being cleaned up, had no duty to keep a proper lookout, and breached no duty by asking the driver for a napkin. Under the facts of this case, appellant argues that the trial court erred in placing a duty for the safe operation of the automobile upon appellant. We disagree.

The duty of a passenger in an automobile is measured by the same standard of care as that of the driver; the test applied is reasonable care, the care a reasonably prudent person would exercise under like circumstances. However, the conduct required of a passenger to satisfy that duty may be quite different from that required of the driver. Edmiston v. Texas & New Orleans Railroad Company, 135 Tex. 67, 138 S.W.2d 526, 529 (Tex.Com.App.1940, opinion adopted); Galvan v. Sisk, 526 S.W.2d 717, 719 (Tex.Civ.App. Amarillo 1975, n. w. h.).

The general rule regarding a passenger's duty to keep a proper lookout is stated in Dudley v. Whatley, 400 S.W.2d 773, 775 (Tex.Civ.App. Houston 1966, ref'd n. r. e.):

"Ordinarily a passenger, not being in charge of the operation of the automobile, is not required constantly to keep a lookout. He may rely on the driver to keep watch unless he knows from past experience or from the manner in which the car is being driven on the particular trip, that the driver is likely to be inattentive or careless." (Emphasis added.)

See also Edmiston v. Texas & New Orleans Railroad Company, supra, 138 S.W.2d at 530; Atchison, Topeka & Santa Fe Railway Company v. Sheppard, 447 S.W.2d 216, 219 (Tex.Civ.App. Eastland 1969, n. w. h.); Edmondson v. Keller, 376 S.W.2d 5, 7 (Tex.Civ.App. Austin 1964, ref'd n. r. e.).

A passenger must protest the driver's excessive speed when the speed is such that a reasonable man would realize its excessive character. Edmiston v. Texas & New Orleans Railroad Company, supra; Atchison, Topeka & Santa Fe Railway Company v. Sheppard, supra; Brister v. Lasiter, 444 S.W.2d 331, 337-8 (Tex.Civ.App. El Paso 1969, ref'd n. r. e.). A passenger may not abandon the exercise of his own faculties and rely solely upon the driver when the passenger knows the vehicle is being driven in a reckless or careless manner. Texas Mexican Railway Company v. Hoy, 24 S.W.2d 18, 20 (Tex.Com.App.1930, jdgmt. adopted).

Whether or not a legal duty exists under a given state of facts and circumstances is essentially a question of law for the court. Webb v. City of Lubbock, 380 S.W.2d 135, 136 (Tex.Civ.App. Amarillo 1964, ref'd n. r. e.). It is undisputed that appellant retained the authority to direct and supervise the manner in which the Adams' vehicle was operated, an authority recognized by both appellant, the passenger, and Gonsoulin, the driver. Gonsoulin was driving an unfamiliar vehicle and required a review of the gears from appellant prior to starting out. The street signs posted at the entrance to the residential area warned that children played in the area. Appellant diverted the driver's attention from the road by requesting him to clean up the seat while appellant attempted to stand up in the car. It is undisputed that while the driver's attention was so diverted, appellant failed to keep a lookout and failed to request the driver to slow down or stop. Under such a state of facts...