Dabney v. Home Ins. Co.

Decision Date08 December 1982
Docket NumberNo. C-1267,C-1267
Citation643 S.W.2d 386
PartiesCurtis DABNEY et al., Petitioners, v. The HOME INSURANCE COMPANY, Respondent.
CourtTexas Supreme Court

Seale, Stover, Coffield & Gatlin, John H. Seale, Jasper, for petitioners.

Benckenstein, Norvell and Bernsen, David Eric Bernsen and G.R. Akin, Beaumont, for respondent.

BARROW, Justice.

This is a suit to recover damages under the uninsured motorist coverage of an automobile liability policy. The Home Insurance Company (Home) issued the policy on a vehicle owned by John Haynes which was being operated with his permission by Michael Ray Fontenot. At the time of the occurrence, Fontenot was racing on a public highway with an automobile operated by Ronald Stubbs, an uninsured motorist. Fontenot's vehicle went out of control, veered off the highway, and crashed into a house.

The trial court rendered judgment on the jury verdict for plaintiffs, Curtis Dabney, John Goosby and John Haynes against Home. The court of appeals concluded there was no evidence to support the jury findings that any of the negligent acts of Ronald Stubbs were a proximate cause of the occurrence in question. It reversed the judgment of the trial court and rendered judgment that petitioners recover nothing of and from Home. Unpublished opinion, Rule 452, Tex.R.Civ.Pro. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

At the time of the one-car accident, the automobile operated by Fontenot was occupied by Goosby, Haynes and Jacqueline Dabney, wife of Curtis Dabney. As a result of the accident, Jacqueline sustained fatal injuries while Goosby and Haynes sustained personal injuries.

The vehicle operated by Fontenot was insured with Home for liability, uninsured motorist coverage and personal insurance protection (PIP). The uninsured motorist provision in Haynes' policy was applicable since Stubbs was uninsured. Home settled with all petitioners for the negligent acts of Fontenot under the policy's liability coverage and also paid petitioners under the PIP coverage. Home, however, declined responsibility for the alleged negligence of Stubbs under the uninsured motorist coverage.

Petitioners filed this suit seeking to recover damages under the uninsured motorist provision of Haynes' policy for the negligence of Stubbs. Home defended the suit on behalf of Stubbs and asserted the accident was caused by the negligent conduct of Fontenot and the passengers in Haynes' vehicle. The jury found that the accident was proximately caused by the negligence of the four occupants of Haynes' vehicle as well as Stubbs in the following percentages:

                Fontenot  50%
                Goosby     5%
                Haynes     5%
                Dabney    10%
                Stubbs    30%
                

The trial court rendered judgment on this verdict whereby each of the petitioners recovered their damages as found by the jury. See Tex.Rev.Civ.Stat.Ann. art 2212a, § 2(e). 1 This judgment was appealed by Stubbs who urged that there was no evidence or insufficient evidence to support the jury findings of proximate cause against Stubbs. Since the jury failed to find Stubbs had swerved his vehicle toward Fontenot's vehicle, the court of appeals concluded there was no evidence to support any of the jury findings that Stubbs' negligence were a proximate cause of the accident. Therefore, it did not consider any of Stubbs' other points of error.

The Uniform Act Regulating Traffic on Highways in this state prohibits one from driving a vehicle or participating in a race on state highways. See Tex.Rev.Civ.Stat.Ann. art. 6701d, § 185. The undisputed evidence established that Stubbs and Fontenot were racing at the time of the accident. Further, the jury found that Stubbs was negligent in racing with or participating in a race with Fontenot and that this negligence was a proximate cause of the occurrence in question. The court of appeals, although recognizing this was negligence per se, concluded that this negligence was not a proximate cause of the occurrence. We disagree.

In Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969), we considered the legal consequences where a person was injured while "participating in a 'drag race' on a public highway." The trial court granted a take-nothing summary judgment against the plaintiff who was participating in the drag race. We affirmed and said in part:

[W]e are of the view that the violation of the statute constituted contributory negligence per se. The Legislature plainly set out prohibited conduct. An object of the statute was to prevent injury growing out of racing on the highways. This injury grew directly out of the prohibited conduct. It was of the class of conduct or hazard which the legislation was designed to guard against....

....

We also agree with the Court of Civil Appeals that the acts of the plaintiff which constituted negligence as a matter of law were a proximate cause as a matter of law. The foreseeable risks of holding a drag race upon a highway in violation of the statutes of this state include the risk that someone in the zone of danger of the race would be injured.... Id. at 900.

This holding controls here. Although the jury found common law negligence and proximate cause against Stubbs, the jury finding that Stubbs was racing on a public highway established negligence per se. Under the holding in Parrott v. Garcia, supra, such negligence was a proximate cause of the occurrence as a matter of law. See also Mackey v. State, 400 S.W.2d 764 (Tex.Cr.App.1966); Teel v. Potter, 523 S.W.2d 320 (Tex.Civ.App.--Tyler 1975, writ ref'd n.r.e.); Rogers v. Murrell, 467 S.W.2d 642 (Tex.Civ.App.--Amarillo 1971, writ dism'd).

Several points of error not reached by the court of appeals were urged as cross points in support of the take-nothing judgment. Home urges as to all petitioners that the jury findings that each of the passengers knew Fontenot to be driving while intoxicated (DWI) and that each had a fair and reasonable opportunity to leave the vehicle before the accident should bar petitioners' recovery. We fully appreciate the strong public policy against DWI and the public's concern over the many serious accidents and injuries which result from DWI. 2 Nevertheless, this matter must be left to the legislature in that the relief urged by respondent would be contrary to the Comparative Negligence Statute, Tex.Rev.Civ.Stat.Ann., art. 2212a.

Home asserts the negligence of Fontenot should be imputed to each of his passengers and the combined negligence of the driver and each passenger should be compared with the negligence of Stubbs. Home urges that since the combined negligence would be greater than Stubbs' percentage of negligence, the passengers should be barred from recovery under article 2212a, § 1. In addition, Home asserts that Fontenot's negligence should be imputed to Haynes because he was the owner of the car which Fontenot was driving at the time of the accident.

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