City of Austin v. Hoffman

• Decision Date: 06 May 1964
• Docket Number: No. 11194,11194
• Citation: 379 S.W.2d 103
• Parties: The CITY OF AUSTIN, Appellant, v. Stanley Gordon HOFFMAN, a Minor et al., Appellees.
• Court: Texas Court of Appeals

Page 103

379 S.W.2d 103

The CITY OF AUSTIN, Appellant, v. Stanley Gordon HOFFMAN, a Minor et al., Appellees.

No. 11194.

Court of Civil Appeals of Texas, Austin.

May 6, 1964.

Rehearing Denied May 27, 1964.

Doren R. Eskew, City Atty., Thomas R. Hunter, Asst. City Atty., Austin; Gay & Meyers, Austin, for appellant.

Byrd, Davis & Eisenberg, Marion S. Roberts, Jr., Austin, for appellee.

ACHER, Chief Justice.

This is an appeal from a judgment for $82,243.70 based on a jury verdict favorable to appellees.

The suit was filed by Howard B. Hoffman and his minor son, Stanley Gordon Hoffman for damages growing out of personal injuries sustained by the son in a collision between a motor scooter operated by the son and a pickup belonging to the City of Austin, and operated by its employee.

The appeal is predicated on 13 points assigned as error by the Court and are that the Court erred in defining 'proper lookout,' 'excessive speed,' etc., as applied to the minor in such manner as to cause the jury to judge his conduct by that of a child, instead of the degree of care required of an adult, in suppressing any showing to the fact that the minor had a driver's license; in refusing pleadings that the father of the minor was negligent in permitting the minor to ride the scooter under the circumstances, in permitting appellees to file a Trial Amendment after the jury had returned its verdict and had been discharged; in permitting appellees to reopen their case and to introduce evidence as to the filing of their claim after the jury had returned its verdict; in submitting issues Nos. 42 and 43 as to further medical services to be furnished the minor during his minority, and after reaching his majority, in submitting issue No. 44 as to the minor's potential earning power in the absence of testimony; in submitting issue No. 45, in the absence of testimony, that the minor would receive, or as to the costs thereof; in refusing witness Swanzy to testify as to the speed of the scooter at the time of and immediately prior to the collision; in permitting Dr. Zedler to testify as to the meaning of and results from a psychological test given to the minor; in submitting issue No. 48 because the elements of damage were not therein specified, and the jury being requested to place a money value on physical impairment and mental impairment of the minor; and finally in rendering judgment in favor of the minor for $25,000.00 for pain and suffering, such finding being greatly excessive.

The minor was about 13 years old. He and a friend were riding a motor scooter on Montopolis Drive when they were involved in a collision with a city truck at the intersection of Montopolis Drive and approaching its intersection Felix Avenue, and when the driver of the truck was making a left turn to go into Felix Avenue in an easterly direction the scooter ran into the right of the truck and the minor appellee was thrown from the scooter and injured seriously.

We insert herein for orientation and illustration purposes a plat of the area with identification marks and notations thereon:

APPROXIMATE POSITION OF CITY TRUCK, HOFFMAN SCOOTER,

UNIDENTIFIED CAR AND BISHOP VEHICLE WHEN CITY

TRUCK FIRST BEGAN ITS LEFT TURN

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On the occasion of the collision, the weather was clear and the surface of the streets was dry.

It does not appear that there is any serious dispute as to the facts concerning the happening of the accident, but the manner of the trial and the procedure is under attack by the appellant as has been mentioned in a restatement of the points of error, and the law as controls the legal effect of the procedure of the trial.

The case was submitted to a jury on 48 special issues, with definitions and instructions in connection therewith.

Appellant objected to and complains of the definition of negligence as applied to Stanley Hoffman, as the doing of that which an ordinary prudent child of his age, intelligence, etc. would not have done under the same or similar circumstances, or the failure to do so, and of ordinary care as applied to Stanley Hoffman as meaning the degree of care which an ordinary prudent child, etc. would have exercised, etc., and 'proper lookout' and 'excessive speed' as applied to Stanley Hoffman being defined as that of a child of the same age and experience, instead of holding him to the degree of care required of an adult.

We do not believe that the Court's definition of proper lookout and excessive speed was error in fixing the standard of care of Stanley Hoffman as that of a child of the same age, experience and intelligence instead as that of an adult driver of a motor vehicle.

The general rule is that a minor child is required to use only the care which a child of the same age, intelligence and experience would use.

In Renegar v. Cramer, Tex.Civ.App., 354 S.W.2d 663, er. ref., n. r. e., this Court held that a 14 1/2 year old should be judged by the adult standard of care, but stated:

'If appellant had been 11 years old at the time of the collision, we would follow the decision in Dallas Railway. Since she was then 14 1/2 years of age we believe, under the cases cited by appellant that she is subject to the rule prescribed for a 16-year old person in Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063, * * *.' At page 676.

It would appear that if a child is under the common law bracket of fourteen, the Texas Courts apply the standard of care applicable to children, and on the other hand, if a child is above the age of 14, the adult standard of care is applied, unless it be shown that the child is wanting in discretion or laboring under the handicap of some mental disability. In Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201, the Court made the statement:

'* * * The age of the child in this case lies within the classic common-law brackets of seven and fourteen. 14 Am.Jur. 811. * * *'

In Dallas Ry. & Terminal Co. v. Rogers, 147 Tex. 617, 218 S.W.2d 456 (1949), an eleven year old child was injured at an intersection. The court held that the child standard of care must be applied. In explaining why the case of Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063 (1939), did not control, the court said:

'* * * The decision has no application to an eleven year old child, who in age and maturity is about midway between the two extremes represented by the very young child, as for example, one three years of age conclusively presumed to be incapable of contributory negligence, and the child in the later years of minority, for example sixteen years of age presumed prima facie to have the capacity and discretion of an adult. Under the authorities above discussed, which are in line with the weight of authority, the standard by which to measure the conduct of an eleven year old child, as regards negligence, is the degree of care ordinarily exercised by children of the same age, intelligence, experience and capacity. 38 Am.Jur. pp. 884-892, Secs. 204, 205; * * *.'

The cases cited by appellant involve the operation of an automobile by one in excess of 14 years such as Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063. Douglas v. Corder, Tex.Civ.App., 366 S.W.2d 615, er. ref., n. r. e.

In two other jurisdictions the adult standard of care for children under 14 years of age, 'if they are driving automobiles, trucks, airplanes or power boats.'

Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859; Betzold v. Erickson, 35 Ill.App.2d 203, 182 N.E.2d 342.

When a minor assumes to act as an adult as is recognized in all of the decisions, and in doing so may be judged by the adult standard of care. In such cases emphasis is placed upon the danager that the minor creates to other members of the general public.

Stanley Hoffman was 13 years and 3 months oid, and was riding a small motor scooter, and such activity would not be dangerous to other members of the general public.

We do not believe that the Court's action in sustaining the appellee's motion in limine to suppress testimony showing that Stanley Hoffman had obtained a driver's license before he became 14 years old was error.

The pretrial order instructed the counsel for the City not to mention in any manner or convey to the jury any of the facts set out in the motion without first obtaining permission of the Court.

At no time during the trial did the City offer evidence of Stanley Hoffman's license to operate a scooter, and the granting of the motion in limine was not reversible error.

Hartford Accident and Indemnity Company v. McCardell, 369 S.W.2d 331, Supreme Court.

The third point is directed to the Court's action in refusing to permit appellant to plead that the father of the minor was negligent in permitting the minor to ride the motor...