Borden, Inc. v. Price, 07-96-0198-CV

• Decision Date: 13 February 1997
• Docket Number: No. 07-96-0198-CV,07-96-0198-CV
• Citation: 939 S.W.2d 247
• Parties: BORDEN, INC., Appellant, v. David L. PRICE and Mary Price, Appellees.
• Court: Texas Court of Appeals

Page 247

939 S.W.2d 247

BORDEN, INC., Appellant, v. David L. PRICE and Mary Price, Appellees.

No. 07-96-0198-CV.

Court of Appeals of Texas,

Amarillo.

Feb. 13, 1997.

Rehearing Overruled March 13, 1997.

Stewart R. Werner, Mullin Hoard & Brown, L.L.P., Amarillo, for appellees.

S. Tom Morris, Vance Edward Ivy, Gibson Ochsner & Adkins, L.L.P., Amarillo, for appellants.

Before BOYD, C.J., and DODSON and QUINN, JJ.

QUINN, Justice.

Borden, Inc. (Borden) appealed from a monetary judgment entered in favor of David L. Price (Price) and Mary Price. In eight points of error, it asked whether the trial court erred in 1) refusing to instruct a verdict holding Price comparatively negligent in excess of 50%, 2) overruling various objections to the charge, 3) improperly instructing the jury on the question of legal excuse, 4) improperly instructing the jury on the question of emergency, 5) instructing the jury in a manner which informed it of the effect of its answers, 6) denying new trial because the jury's failure to hold Price comparatively negligent was "against the great weight of the evidence and ... conclusively wrong," 7) denying new trial because the finding of negligence against Borden's employee was "against the great weight of the evidence," and 8) denying new trial because the damages awarded were "excessive and manifestly unjust." We reverse and remand the cause for new trial.

Background

On August 19, 1991, around mid-day, Price exited from a truck driven by Charles Allen. At the time, the vehicle had pulled over on the north shoulder of the west bound lanes of Interstate 40 in Amarillo. The two had been driving in a westerly direction and came upon a couch cushion lying ahead of them in the lane adjacent to the north shoulder. They "curved" into the center lane, passed it, and then spontaneously decided to remove it. Consequently, they stopped on the shoulder, and Price left the vehicle, used the shoulder of the highway to walk back to where the cushion lay, entered the lane, and picked up the cushion. However, as he returned to the shoulder, he was struck by a Borden's dairy truck driven by Damon Brown (Brown). The truck had gone atop the shoulder because a minivan in front of it had slowed to avoid the couch cushion.

Point of Error Two

Borden contended that the trial court erred in instructing the jury that violations of sections 54A, 55(b), 60(a), 61(a), and 166(b) and (c) of article 6701d of the Texas Revised Civil Statutes constituted negligence per se. The instructions read:

Section 54A of Article 6701d, Texas Civil Statutes, provides a driver of a motor vehicle may operate a vehicle on an improved shoulder to the right of the main traveled portion of the roadway as long as necessary and when the operation can be done in safety under the following circumstances: (1) to stop, stand or park; (2) to overtake and pass another vehicle that is slowing or stopped on the main traveled portion of the highway disabled; or (3) at any time to avoid a collision; and, failure to comply with this law is negligence in itself, unless excused;

Section 55(b) of Article 6701d, ... provides that a driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the main traveled portion of the roadway except as provided in Section 54A; and, failure to comply with this law is negligence in itself, unless excused;

Section 60(a) of Article 6701d, ... provides that the driver of a vehicle shall drive as nearly as practical entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety; and, failure to comply with this law is negligence in itself, unless excused;

Section 61(a) of Article 6701d, ... provides that the driver of a motor vehicle shall, when following another vehicle, maintain an assured clear distance between the two vehicles, exercising due regard for the speed of such vehicles, traffic upon and conditions of the street or highway, so that such motor vehicle can be safely brought to a stop without colliding with the preceding vehicle, or veering into other vehicles, objects or persons on or near the street or highway; and, failure to comply with this law is negligence in itself, unless excused; and,

Section [sic] 166(b) and (c) of Article 6701d, ... provide that a driver of a motor vehicle must operate a motor vehicle at a speed that is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing; and at a speed necessary to avoid colliding with any person, vehicle or other conveyance on the highway; and, failure to comply with this law is negligence in itself unless excused. ¹

(Emphasis added). By including in each the phrase that the "failure to comply ... is negligence in itself, unless excused," the court purportedly misstated that law. That is, the duties imposed were not absolute but conditioned upon proof that Brown failed to act "in safety," Tex.Rev.Civ. Stat. Ann. art. 6701d, §§ 54A & 55(b) (Vernon Supp.1986), "with safety," id. at § 60(a), "safely," id. at § 61(a), and "reasonabl[y] and prudent[ly]." Id. at § 166(b) & (c). And, since proving that its employee failed to so act depended upon whether he failed to abide by the "common-law test of the reasonably prudent man," see Missouri-Kansas-Texas R.R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 935-36 (1956), a violation of the statutes could not be negligence per se, according to Borden. We agree.

As the Texas Supreme Court stated long ago, "[n]egligence per se is a tort concept whereby a legislatively imposed standard of conduct is adopted by the civil courts as defining the conduct of a reasonably prudent person." Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex.1979); accord Southern Pacific Co. v. Castro, 493 S.W.2d 491, 497 (Tex.1973) (adopting the Restatement (Second) of Torts definition that negligence per se consists of an unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man); Continental Oil Co. v. Simpson, 604 S.W.2d 530, 534 (Tex.Civ.App.--Amarillo 1980, writ ref'd n.r.e.) (holding that the statute or regulation must, in effect, prescribe a standard of conduct before its violation may be considered negligence per se). Implicit therein is the concept that by declaring in a statute that the public must do or refrain from doing a specific act, the legislature has effectively characterized the commission of the act as conduct which a reasonably prudent person would not do. See 3 F. Harper, F. James & O. Gray, The Law of Torts § 17.6 at 621 (1986) (stating that when the community, i.e., legislature, has officially determined that certain risks are foreseeable and are to be avoided by undertaking a prescribed course of action, no reasonable person would thereafter fail to undertake the prescribed course); see Missouri Pacific R.R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977) (stating that where the legislature has declared that a particular act shall not be done, it fixes a standard of reasonable care the unexcused violation of which constitutes negligence per se). And, in doing so, it obviated the need to ask a jury to pass upon the actor's prudence. Id.; Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440, 443 (1954) (quoting Swoboda v. Brown, 129 Ohio St. 512, 196 N.E. 274 (1935)). Instead, the trial court merely has the fact finder decide if the tortfeasor committed the act proscribed by the statute and if the act proximately caused injury. Moughon v. Wolf, 576 S.W.2d 603, 604-05 & nn. 2 & 3 (Tex.1978). ² So, simply put, if violation of the duty imposed by a statute is dependant upon a jury determining if the act was unreasonable or imprudent, then the statute cannot be one involving negligence per se. Cudworth v. South Texas Paisano Const. Co., 705 S.W.2d 315, 317 (Tex.App.--San Antonio 1986, writ ref'd n.r.e); Renfroe v. Ramsey, 477 S.W.2d 648, 650 (Tex.Civ.App.--Houston [14th Dist.] 1972, no writ); Hemphill v. Meyers, 469 S.W.2d 327, 328 (Tex.Civ.App.--Austin 1971, no writ); Schwab v. Stewart, 387 S.W.2d 939, 942 (Tex.Civ.App.--Amarillo 1964, writ ref'd n.r.e.).

Moreover, the absolute versus conditional duty dichotomy mentioned by Borden is nothing more than a restatement of the foregoing rule. That is, by conditioning its breach upon proof that the defendant failed to act safely, with safety, or prudently, the statutes imposed upon the complainant the burden of proving that his opponent acted unreasonably. Missouri-Kansas-Texas R.R. Co. v. McFerrin, 291 S.W.2d at 935-36; Cudworth v. South Texas Paisano Const. Co., 705 S.W.2d at 317 (holding that whether a driver operated his vehicle on an improved shoulder "in safety," as per art. 6701d, § 54A of the Texas Revised Civil Statutes, depends upon whether he acted reasonably under the common law); Renfroe v. Ramsey, 477 S.W.2d at 650 (holding that whether a driver "safely" entered an intersection, as per art. 6701d, § 71(c) of the Texas Revised Civil Statutes, depends upon whether he acted prudently); Hemphill v. Meyers, 469 S.W.2d at 328 (holding that whether a driver failed to yield the right of way, as per art. 6701d, § 74 of the Texas Revised Civil Statutes, depends upon whether he acted negligently or unreasonably); Schwab v. Stewart, 387 S.W.2d at 942 (holding that whether a driver failed to exercise "due regard" for others so that his vehicle could "safely" stop, as per art. 6701d, § 61(a) of the Texas Revised Civil Statutes, depends upon whether he acted imprudently). ³ So, the duties imposed by each statute are conditioned upon a jury determining whether the accused acted unreasonably. Id. Given this, we must conclude 1) that the legislature itself did not declare, as...