Brownsville Nav. Dist. v. Izaguirre
| Decision Date | 04 October 1990 |
| Docket Number | No. 13-89-290-CV,13-89-290-CV |
| Citation | 800 S.W.2d 244 |
| Court | Texas Court of Appeals |
| Parties | BROWNSVILLE NAVIGATION DISTRICT and Missouri Pacific Railroad Company, d/b/a Union Pacific Railroad Company and Missouri Pacific Truck Lines, Appellants, v. Guadalupe IZAGUIRRE, Individually, et al., Appellees. |
Richard Hoffman, Hoffman & Hoffman, Brownsville, James England, Roger Townsend, Ben Taylor, Madelyn DeWoody, Fulbright & Jaworski, Houston, for appellants.
Richard Schechter, Houston, Alberto Villegas, Brownsville, for appellees.
Before NYE, C.J., and KENNEDY and SEERDEN, JJ.
Appeal is taken from the jury trial of a wrongful death and survival lawsuit. The jury found negligence on the part of appellants Brownsville Navigation District (BND), Missouri Pacific Railroad Company and Missouri Pacific Truck Lines. 1 Based upon the jury's verdict, the trial court awarded money damages to appellees, the decedent's beneficiaries. MOPAC and BND each assert four points of error. We affirm.
Epigmenio Izaguirre was fatally injured at work when a 7,000 lb. steel coil fell and crushed him. Izaguirre worked at a warehouse located at the Port of Brownsville on land leased by his employer, Fosforo, Inc. The lessor and owner of the land was BND.
In May of 1987, the owner of some of the steel coils stored at the warehouse instructed Fosforo to ship five coils to Chicago. The coils would be loaded onto a trailer and shipped by truck to San Antonio, then the trailer would be loaded "piggyback" on a MOPAC railroad flatcar bound for Chicago. At the owner's request, Fosforo contacted Alamo Express (the trucking company which, several times earlier that week, had transported steel coils from the warehouse) and instructed them to deliver a trailer for loading by Fosforo employees. The Alamo driver picked up an empty trailer at the MOPAC terminal in San Antonio and delivered it to the warehouse. He "spotted" the trailer by backing it up to the Fosforo dock and lowering the trailer's dolly legs to support the front end of the trailer when the tractor was later removed. Because the ground on which the trailer stood was dirt and it was raining, the surface was soaked and muddy. To keep the dolly legs from sinking into the ground, the driver placed a large wooden board under them. Fosforo kept a board leaning against the warehouse, for just such an occasion. The driver then removed the tractor and drove off.
Shortly thereafter, Fosforo employees began to load the trailer. In the course of loading the coils, an employee drove a forklift into the trailer, a fully enclosed "van trailer," as opposed to a flatbed. The coils were "blocked" by nailing wooden wedges into the floor of the trailer; this procedure was intended to keep the coils from moving. At the time of the accident, the forklift operator was inside the trailer and placing a second coil on the floor, waiting for Izaguirre to finish blocking the first coil before removing the forks from the second. Izaguirre was kneeling next to the first coil on the right-hand side, nailing in the wedges, when the board under the dolly legs broke. The trailer fell onto its right side. Izaguirre was pinned under the coil. He bled to death.
This accident was the second at the Port of Brownsville, involving both a trailer supplied by MOPAC and an overturn occurring during loading. In May of 1982, another man was injured; the van trailer he was loading overturned when the board supporting the dolly legs broke. The trailer was spotted on muddy ground by a MOPAC driver. In May of 1984, the injured man sued MOPAC and BND. Both parties filed general denials. Fosforo and its employees were never informed about this prior accident.
The trailer involved in the present suit was manufactured by Fruehauf Corporation, sold to XTRA Corporation, leased and maintained by CSX Transportation and MOPAC, and delivered by Alamo Express, Inc. Although all of these companies were originally named as defendants in this suit, MOPAC is the only one before us on appeal.
By its first point of error, MOPAC contends that the trial court erred by granting appellees' motion for leave to file a post-verdict amendment to their pleadings (an eleventh amended original petition). Considering only appellees' prior pleadings (the tenth amended original petition) and the proof adduced at trial, we find sufficient support for the judgment. Thus, even if the trial court erred, MOPAC could not have been harmed by the post-verdict amendment. See Tex.R.App.P. 81(b)(1).
Appellees' tenth amended original petition alleged the following acts of negligence on the part of MOPAC:
(1) In failing to warn users about the proper method for setting up this type trailer or instruct when the trailer is going to be loaded without the benefit of a tractor hooked up to the trailer;
(2) In failing to warn or instruct users about the proper methods of setting up the trailer;
(3) In failing to ascertain what the trailer was going to be used for before leasing it to Alamo Express, Inc.;
(4) In failing to warn or instruct about the limitations of the use of the trailer;
(5) In failing to maintain a proper safety program;
(6) In failing to properly inspect, adjust and/or maintain the trailer brakes prior to releasing the trailer to Alamo Express, Inc.;
(7) In allowing the trailer to be used to haul steel coils; and
(8) In failing to warn about the dangers of spotting trailers at the Port of Brownsville.
Without objection, the trial court submitted a broad form negligence question to the jury: "Did the negligence, if any, of those named below proximately cause the occurrence in question?" Thus, any of the pled acts or omissions which are supported by the evidence will, in turn, support the judgment. See Alm v. Aluminum Co. of America, 717 S.W.2d 588, 593 (Tex.1986); Scott v. Atchison T. & S.F. Ry., 572 S.W.2d 273, 282 (Tex.1978) (on rehearing). After reviewing the record, we believe several of the alleged acts and omissions are supported by sufficient evidence; nonetheless, for the sake of brevity, we discuss only one--MOPAC's failure to maintain a proper safety program.
The evidence at trial revealed that MOPAC distributed a circular to Fosforo which, according to MOPAC's regional manager, was intended to show shippers and motor carriers the prescribed methods for properly loading trailers. While MOPAC's regional manager contended that the circular portrayed a reliable method for securing the coils, the other witnesses disagreed. Howard Bosscher, appellees' safety expert, testified that the method described by the circular was not only unsafe but also illegal, as it violated federal regulations which require the coils to be secured by "tie-downs." Gary Nelson, co-defendant XTRA's safety consultant, testified that federal regulations require any coil weighing more than 5,000 lbs. to be strapped to the frame of the trailer, not just blocked. He further testified that the circular failed to mention this fact and wholly failed to show the proper and legal method for loading these coils.
Any variance between pleadings and proof is rarely a source of harmful error. Fruehauf Corp. v. Ortega, 687 S.W.2d 777, 782 (Tex.Civ.App.--Corpus Christi 1985, no writ) (per curiam). Moreover, pleadings are to be construed liberally, particularly when the complaining party has not filed any special exceptions. See Paramount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491, 496 (Tex.1988). Finally, when an issue is submitted broadly and no objection is made to the broad submission, the judgment will not be reversed simply because one or more acts contributing to the injury was not particularly pled. Brown v. American Transfer and Storage Co., 601 S.W.2d 931, 938 (Tex.1980), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980).
Appellees pled MOPAC's failure to maintain a proper safety program. MOPAC did not specially except to this pleading. MOPAC's intent to include this circular as part of its safety program can reasonably be inferred from the evidence, especially in light of the fact that MOPAC employees would be exposed to any dangers created by improperly loaded trailers when the trailers were returned for transport on MOPAC railcars. Because appellees' allegation in their tenth amended petition is not misleading and is adequately supported by the evidence, the trial court's ruling on any subsequent amendment is simply irrelevant. Cf. Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938 (Tex.1990) (). Point one is overruled.
By its second point of error, MOPAC argues that, as a matter of law, it owed no duty to the decedent, Izaguirre. The Restatement (Second) of Torts § 324 A(c) (1965) provides, in relevant part:
One who undertakes ... to render services to another which he should recognize as necessary for the protection of a third person ... is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if the harm is suffered because of reliance of the other or third person upon the undertaking.
A party that voluntarily undertakes an affirmative course of action for the benefit of others has a duty to exercise reasonable care in performing the action. Colonial Savings Ass'n v. Taylor, 544 S.W.2d 116, 119-20 (Tex.1976); see also Roberson v. McCarthy, 620 S.W.2d 912, 914 (Tex.Civ.App.--Corpus Christi 1981, writ ref'd n.r.e.) (quoting § 324 A). When MOPAC distributed the circular, purporting to instruct on the proper loading procedures, MOPAC assumed a legal duty to exercise reasonable care in its preparation and dissemination. Upon distribution to Fosforo, MOPAC incurred a legal duty to third persons...
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