Bogue v. Michael D. Newman
| Decision Date | 29 August 2014 |
| Docket Number | No. 11-12-00098-CV,11-12-00098-CV |
| Parties | SIDNEY BOGUE, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF ELIZABETH BOGUE, DECEASED, ET AL., Appellants v. MICHAEL D. NEWMAN ET AL., Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 42nd District Court Callahan County, Texas
This appeal involves wrongful death claims made by Sidney Bogue and other family members1 that arose in connection with a vehicle collision that resulted in the death of Bogue's wife, Elizabeth. Appellants brought suit againstMichael D. Newman, the driver of the vehicle involved in the collision; Associated Contractors, Inc., Newman's employer; and Charles William Bishop, Newman's grandfather and 100% owner of Associated Contractors.
The jury entered findings in favor of Charles Bishop and Associated Contractors, but the jury found Newman liable for Elizabeth's death and awarded damages. The trial court entered a final judgment in favor of Appellants against Newman for $121,776 plus interest. Appellants assert five issues on appeal. We affirm.
Travis Hounshell, a trooper with the Texas Department of Public Safety, testified that he was notified that there had been a serious accident between I-20 and Cottonwood. When Trooper Hounshell arrived at the scene, he saw a man in the bar ditch next to someone who was injured; he also saw the bed of a pickup in the center of the highway, a crushed red pickup in the southbound lane, and a larger blue pickup in the bar ditch. Trooper Hounshell determined that Elizabeth Bogue was the driver of the red pickup, and that Newman was the driver of the blue pickup. Trooper Hounshell first checked on Newman, who was the injured man in the bar ditch, and then he went to the red pickup, which was completely crushed; there he found Elizabeth dead inside the pickup.
Trooper Hounshell and Trooper Mike Haley completed the investigation and reconstruction of the accident. Troopers Hounshell and Haley examined the wreckage; took measurements and photographs; and used paint to mark the location of the vehicles, as well as skid and gouge marks, on the pavement. They also marked striations in the road, interviewed Newman, and prepared a report. Trooper Hounshell reported that Newman's blood was tested for the presence of alcohol, narcotics, and drugs but that the blood was negative for all three. Trooper Hounshell also checked Newman's driving record and learned that he had a DUIand one citation for a defective stop lamp. There was no information that Newman's license had been suspended. When Trooper Hounshell asked Newman what he had been doing before the accident, Newman said that he did not remember the accident and that he had just come from his grandfather's farm where he had been "fixing [deer] feeders."
From his investigation, Trooper Hounshell determined that Newman drove a blue pickup on FM2228 and that, as he rounded a curve in the road, he drove left of the double yellow centerline and struck a red pickup being driven by Elizabeth. Trooper Hounshell also determined that Newman had been speeding, that he had crossed the double yellow centerline in a no-passing zone, and that he had struck Elizabeth's red pickup "head on" and had driven over it. Elizabeth died from injuries she sustained in the collision.
Newman worked full-time at Associated Contractors in Abilene. Newman testified that, on the day of the accident, he left work at around 3:00 p.m. and went to his grandfather's farm in Callahan County to fill deer feeders and to fish. Newman had been paid to complete fence work and other tasks at the farm, but he was not paid to fill deer feeders or to fish. While he was at the farm, Newman's wife called him and told him that supper was ready, so he left the farm to go to his home in Abilene.
According to Newman, he had driven on FM2228 many times. He testified that, just before the accident, he looked down and reached to fasten his seatbelt and that, when he did, the accident occurred. When Newman was asked why he had not fastened his belt before driving, he said "probably" because he was in a hurry. Newman testified that he did not remember the accident. He also said that he was traveling the speed limit of seventy miles per hour at the time of the accident, but he admitted that he has oversized tires on the pickup and that oversized tires affect a speedometer reading. Newman admitted that Trooper Hounshell had said thatNewman was speeding at the time of the accident. Newman said that he was cited for speeding but that the citation was dismissed.
Newman said that the pickup that he drove on the day of the accident was a pickup that his grandfather, Charles Bishop, had agreed to purchase for him when Newman was seventeen years old. In return, Newman had agreed to pay his grandfather monthly payments, and the pickup was titled in Newman's name. Newman testified that he made the monthly payments and that he paid to add an engine performance chip that would improve fuel economy and towing capacity but also could enhance horsepower performance. Associated Contractors paid for Newman's fuel. Newman said that his grandfather did not have access to the pickup and that Newman and his wife were the only ones that drove the pickup.
Newman said that, the week before the accident, he had left tire marks on the road when he left the farm. His pickup had been in performance mode at that time, but it was not in performance mode at the time of the accident. Newman also admitted that, when he was sixteen years old, he had been stopped for speeding in Nolan County but only received a warning; however, during that same stop, he received a citation for DUI. Newman said that his grandfather had come to pick him up and take him home after he received the DUI citation in Nolan County. The DUI charge was later dismissed.
Newman admitted that, after the Nolan County incident, Newman's grandfather told him to slow down and drive carefully or his grandfather would take the pickup away from him. Newman said that he was not aware that his license had ever been suspended; he also admitted he had received four warnings for speeding after he was licensed and two citations for speeding before he was licensed.
James William Bishop is the vice president of Associated Contractors. James testified that Newman had worked at the Oak Street yard cutting rebar onthe day of the accident2 and that Newman had clocked out and had gone to see his grandfather before he went to the farm to fill deer feeders and to fish. James said that Newman's time sheet for the day of the accident was lost and that James completed one for him so that Newman could be paid the following week.3 James said that the company had workers' compensation coverage but that Newman did not make a workers' compensation claim in connection with the collision because he was not on the job when the accident occurred. James said that Associated Contractors had an outside group check driving records. He indicated that, if a person did not have convictions, he could drive for the company. James was not aware of a DUI charge against Newman, nor was he aware of any speeding tickets.
Charles Bishop is the sole shareholder of Associated Contractors. Charles has two adult children, Jennifer Smith and James Bishop, and Newman is Charles's grandson. Newman's father was not involved in Newman's life. Charles's father died when he was young, so Charles wanted to be there for Newman. Newman started working for Charles when Newman was fifteen years old. Charles said that Newman came by at 3:00 p.m. on the day of the accident and said he was done with work and was going to the farm to fill deer feeders. Charles indicated that, although Newman may have done work at the farm, he was not paid to fill deer feeders or to fish.
Charles said that he paid for Newman's pickup but that Newman was required to pay him back. The pickup was paid for with a check issued byAssociated Contractors, but Charles said that he paid for the pickup and that the pickup was titled in Newman's name because it was Newman's pickup. Neither Charles nor Associated Contractors were listed as owners on the title of the pickup. Charles indicated that the pickup was not a company vehicle and was not depreciated on the company's taxes. Charles said Newman made payments on the pickup. Charles testified that he remembered Newman receiving a warning for speeding and a citation for "minor in possession" in Nolan County when Newman was sixteen years old, but Charles was not aware of any other warnings or citations on Newman's driving record. After the DUI citation, Charles told Newman to drive carefully.
Bobby McCowen, Elizabeth's father, testified that he saw Elizabeth about every two weeks for meals and said that they talked frequently on the phone. McCowen said he has never gotten over Elizabeth's death, but he holds no malice toward Newman.
Sidney Bogue was married to Elizabeth for thirty-six years; he said Elizabeth liked to can foods and research family history and genealogy. They both enjoyed sitting on the porch, walking on their property, and just "doing everything together." Sidney said that Elizabeth worked at Hendrick Medical Center4 and that his and Elizabeth's health insurance was through Elizabeth's employer. According to Sidney, things have been difficult after Elizabeth's passing because of Sidney's medical conditions and medication.5 When Sidney went to the scene of the collision and learned that Elizabeth had been killed, it made him "numb." He testified that he feels "lonely" because his whole life revolved around his wife.
Melanie Bogue testified that she and her mother, Elizabeth, were "very close" and spoke daily. On the day that Elizabeth died, she and Melanie had spoken three times by telephone. Elizabeth was Melanie's "best friend." Melanie was hurt and disappointed that her youngest child, who was born after...
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