Austin v. Shampine
| Decision Date | 01 July 1997 |
| Docket Number | No. 06-96-00110-CV,06-96-00110-CV |
| Citation | 948 S.W.2d 900 |
| Parties | Melvin Doyle AUSTIN and Hobson Big Boy Farms, Appellants, v. Douglas W. SHAMPINE, Appellee. |
| Court | Texas Court of Appeals |
Stephen G. Good, George S. McCall, Kern and Wooley, Irving, for appellants.
Larry Cain, Shain Chapman, Law Office of Larry Cain, Sherman, Jim J. Hatcher, Gainesville, David C. Turner, Jr., Bonham, for appellee.
Before CORNELIUS, C.J., and GRANT and ROSS, JJ.
Melvin Doyle Austin ("Austin") and Hobson Big Boy Farms ("Big Boy") appeal from a judgment awarding $694,620.00 to Douglas W. Shampine ("Shampine") for damages incurred in an automobile accident. Trial was to a jury, which found total damages of $1,362,000.00 and apportioned 51% of the fault to Austin and 49% to Shampine. Austin and Big Boy bring eleven points of error, contending that (1) Shampine's closing statement included improper and incurably prejudicial arguments; (2) the trial court erroneously permitted Shampine to reference deposition testimony not in evidence during the cross-examination of witnesses and during closing argument; (3) the trial court erroneously permitted Shampine to amend his pleadings during trial; and (4) the evidence was legally and factually insufficient to support the amount of damages found. We affirm the judgment.
Shampine was an avid fisherman. He particularly enjoyed entering bass fishing tournaments. In 1992, when Shampine was forty-seven years old, he performed well at several qualifying tournaments. Therefore, he qualified to enter a championship tournament in Kentucky. The tournament required that every fisherman bring an observer, who would monitor other competitors to prevent cheating. Shampine recruited Warren Edward Smith ("Smith") to be his observer.
Shampine and Smith both worked for Weber Aircraft ("Weber") in Gainesville, Texas, a company that manufactures seats for airline companies. Around 4:00 a.m. on November 3, 1992, Shampine and Smith left for Kentucky in Shampine's pickup truck, towing a bass boat. Shampine was driving. He proceeded east on Highway 82 from Gainesville to Sherman. He then took Highway 56 to Bells, where he turned south on Highway 69, headed to Greenville.
Around 5:00 a.m., Shampine and Smith were about one-half mile south of Leonard in southern Fannin County. It was very dark, and the road was unlighted. Shampine and Smith both testified that they observed an unlighted silhouette on the road ahead of them. Shampine took his foot off the accelerator. Then the two men saw wheels on a trailer immediately in front of them. Shampine braked and swerved to the right, but could not get around the trailer, which was blocking the entire road. Shampine's truck slammed into the trailer.
The trailer was hooked to a truck being driven by Austin, an employee of Big Boy. Austin's total rig was fifty-nine feet long. On the night of November 3, 1992, Austin was hauling timber from Idabel, Oklahoma, to a ladder factory in Leonard, Texas. When he arrived in Leonard, Austin did not know how to get to the ladder factory. However, pursuant to instructions that he obtained over the CB radio, Austin turned down a dirt road south of Leonard. Austin did not see the ladder company on the road, so he turned around and drove back to the intersection of the dirt road and Highway 69. Austin intended to drive to Leonard, to ask for directions. In order to proceed back to Leonard, he had to make a very sharp left turn from the dirt road onto Highway 69.
When he reached the intersection, Austin looked to his left and saw headlights down the highway, between Leonard and the intersection. He knew that it would take twenty to twenty-five seconds to complete the turn onto Highway 69; however, he decided that he could turn safely. Halfway into his turn, Austin's trailer was struck by Shampine's truck.
The parties disagree about the exact location of Austin's trailer at the time of the accident. Specifically, Shampine contends that Austin's trailer extended all the way to the guardrail on Shampine's side of the road, whereas Austin and Big Boy claim that Shampine could have swerved around on the shoulder. Austin and Big Boy dispute Shampine's claim that he was blocked on the right by a guardrail. Austin and Big Boy's expert testified that the accident occurred twenty feet beyond the end of the guardrail. After the accident, Smith was able to exit the pickup truck. However, Shampine was trapped in the truck for about thirty minutes. After he was rescued, he was hospitalized for a variety of injuries. Neither Austin nor Smith was seriously injured.
Donald Wayne Walker, Jr. ("Walker"), who was an officer with the Leonard Police Department, arrived on the scene at 5:26 a.m. He prepared an accident report, which listed only one cause of the accident-Austin's failure to yield the right of way. Walker left this report on the desk of his supervisor, Steven Logan ("Logan"). Logan filled out a second accident report, placing most of the blame on Shampine. Although the second report includes Walker's signature, Walker does not remember the second report.
Shampine and Smith sued Austin and Big Boy for damages incurred as a result of the accident. At one point, Shampine and Smith also sued Floy Pratt Hobson, as representative of the estate of Lloyd Hobson. However, all claims against Floy Pratt Hobson were dismissed with prejudice. By the time the case went to trial, Smith was no longer participating as a plaintiff, for reasons not revealed by the record.
Logan was Austin and Big Boy's principal witness. Logan testified that the accident was caused by Shampine's speeding, failure to swerve around the trailer, and inattention. Shampine and Smith denied speeding. They insisted that they saw no lights on the tractor-trailer and so could not avoid the accident. Shampine presented evidence that Austin's headlights were not pointed toward Shampine when Austin was making the turn and that if there were lights on the trailer, they were obscured by mud.
The jury concluded that Austin was 51% responsible for the accident and that Shampine was 49% responsible for the accident. The jury found the following damages:
past physical pain and mental anguish $150,000.00
past loss of earnings $ 0.00
past physical impairment $100,000.00
past medical care $ 37,000.00
future physical pain and mental anguish $400,000.00
future loss of earnings $300,000.00
future physical impairment $300,000.00
future medical care $ 75,000.00
Total damages equaled $1,362,000.00. The amount attributable to Austin's negligence was $694,620.00. The final judgment awarded Shampine $694,620.00 from Austin and Big Boy and Floy Pratt Hobson. The reference to Floy Pratt Hobson was apparently a mistake. Big Boy's liability is premised on respondeat superior.
Austin and Big Boy's first two points of error complain that much of Shampine's closing argument was improper. Austin and Big Boy specifically point out the following passages:
Now, the truck company comes down and gets to Mr. Logan. Mr. Logan then goes out for the trucking company, and--I think he did, and I think you can draw--there is no evidence that he went out with the trucking company--but I think you can draw legal conclusions--or not legal, but conclusions from the evidence. I think Mr. Logan got out with the trucking company, and then he changed the whole thing, signed Mr. Walker's name to it, which Mr. Walker said, I didn't sign it, signed Mr. Walker's name to it, and this is what that they are relying on.
....
The defendant in this case is Hobson Big Boy Trucking Company, who is not here. The vacant chair, they didn't even think enough of the case to even come down here. Not even think enough of the case to come down here. A vacant chair right there is what you can see, that's Mr. Austin--I mean, Mr. Hobson. I know Mr. Hobson is dead. I understand that, and I'm sorry about that. But this case is against Hobson Big Boy Trucking Company....
....
[T]hese lawyers from Dallas, these guys, they do business up in these tall buildings out in Las Colinas, you know, they flew [Logan] all the way down here from Nashville, Tennessee. I guess they have some kind of unlimited budget.
....
I wondered why these high-paid lawyers from Las Colinas didn't bring that high-paid expert down here to tell you how the cow ate the cabbage.
....
Now, I've seen some weak defenses, but this one takes the cake. This one goes beyond the bounds of reasonableness....
....
The thing that kept running through my mind through all of this trial, corporate America has no soul. This trucking company has gone to incredible lengths to try not to take responsibility for what their employee did.... There is something fishy going on here, ladies and gentlemen, looks like to me.
The trucking company is down there. Somebody came down. It was one of Mr. Hobson's grandsons, and somebody Mr. Austin didn't even know. Okay. And the trucking company is down here fooling with the evidence, it looks to me like.
....
[E]verybody is opposed to frivolous lawsuits, me included. I know every one of you are.... And if I have ever seen a corrupt or--and frivolous defense in twenty-five years of trying lawsuits, this is it.
Austin and Big Boy claim that Shampine's arguments present an unfounded conspiracy theory. Austin and Big Boy note that Shampine argued that Big Boy and Logan conspired to place the blame on Shampine. Austin and Big Boy assert that the conspiracy theory is particularly unfair because Big Boy is not a party to the suit. This assertion is unfounded. Every document in the record lists Big Boy as a party. There is no record indicating that Big Boy was ever dropped from the suit. Big Boy is...
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