Davis v. Mathis

• Decision Date: 16 December 1992
• Docket Number: No. 05-90-01455-CV,05-90-01455-CV
• Citation: 846 S.W.2d 84
• Parties: Melvin DAVIS and Beverly Davis, Appellants, v. Glen MATHIS and Dallas Area Rapid Transit, Appellees.
• Court: Texas Court of Appeals

Page 84

846 S.W.2d 84

Melvin DAVIS and Beverly Davis, Appellants, v. Glen MATHIS and Dallas Area Rapid Transit, Appellees.

No. 05-90-01455-CV.

Court of Appeals of Texas,

Dallas.

Dec. 16, 1992.

James Bank, Dallas, for appellants.

Hyatte O. Simmons, Dallas, for appellees.

Before STEWART, BURNETT, and WHITTINGTON, JJ.

OPINION

STEWART, Justice.

This appeal arises out of a suit for tort damages brought by Melvin and Beverly Davis against a governmental unit of the State of Texas, Dallas Area Rapid Transit (DART), and its employee, Glen Mathis. The case proceeded to trial before a jury and, at the conclusion of the evidence, the trial court directed a verdict in favor of Glen Mathis and DART. In two points of error, Melvin and Beverly contend that the trial court erred in granting directed verdicts on the ground that they failed to comply with the statutory notice requirement of the Texas Tort Claims Act; in their third point, Melvin and Beverly contend that the trial court erred in refusing to rule on their motion to set aside judgment. We overrule all three points and affirm the judgment of the trial court.

FACTS

The only evidence presented at trial was the testimony of four witnesses. In addition to Melvin and Beverly's testimony, plaintiffs presented a witness to the accident, Deborah Burkhalter. The defense presented the testimony of the bus driver, Glen. On October 11, 1986, Melvin and Beverly were taking Melvin to work when their car ran into the back door of a DART bus at the intersection of Commerce and Lamar in Dallas, Texas. Melvin was driving and they were traveling east on Commerce approaching the intersection. Melvin testified that the light on Commerce was green and, as he was proceeding through the intersection, he suddenly noticed a Dart bus, traveling southbound on Lamar, run through the intersection. Melvin stated that before he could stop, he ran into the back of the bus. Melvin also said that their light was green for the traffic traveling east on Commerce and that, from his location, he could not see the traffic lights on Lamar for traffic traveling southbound on Lamar.

Beverly testified that at 6:00 a.m., she and Melvin were coming into downtown on Commerce. She stated that the light on Commerce was green. She testified that, as they were going through the intersection, the bus came from behind a building and that it was a matter of seconds before their car collided with the bus. Beverly stated that the road was slippery because it was drizzling that morning.

Deborah testified that she was traveling east on Commerce in the lane to the right of Melvin and Beverly. She testified that the Commerce light was green and that, as she proceeded through the intersection, she had to swerve up on the sidewalk to avoid being hit by the bus. She stated that she knew the bus belonged to DART because its buses are yellow. She testified that Melvin and Beverly's car hit the rear door of the DART bus and that the car was banged up in front. Deborah also testified that the police were present at the scene and that she gave the officer a statement.

Glen, the driver of the bus, testified that, at the time of the accident, he had just turned left off of Main onto Lamar traveling south on Lamar. He stated that the speed limit is thirty miles per hour and that he was going ten miles per hour. Glen testified that, as he approached the intersection of Commerce and Lamar, his light was green on Lamar, so he went through the intersection. As he got his bus about thirty feet through the intersection, the back of the bus was struck by Melvin and Beverly's car. Glen testified that he did not see Beverly and Melvin's car approaching, nor did he ever see their car until he heard the crash.

STANDARD OF REVIEW

In reviewing the granting of a directed verdict, an appellate court must consider all evidence in the light most favorable to the party against whom the instructed verdict was granted and disregard all contrary evidence and inferences. All evidence supporting the non-movant's allegations must be accepted as true, and only when no fact issue remains for the trier of fact to decide will the verdict be allowed to stand. Qantel Business Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 303-04 (Tex.1988); C.S.R., Inc. v. Industrial Mechanical, Inc., 698 S.W.2d 213, 216 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.). Thus, a verdict should be directed in favor of a defendant only where the plaintiff fails to present evidence in support of a fact essential to his right to recover or where a defense against the plaintiff's cause of action is conclusively proved or admitted.

ACTUAL NOTICE

In their first point of error, Melvin and Beverly contend that the trial court erred in directing a verdict for Glen based on their alleged failure to comply with the statutory notice requirement of the Texas Tort Claims Act. In their second point of error, they contend that it was error for the trial court to direct a verdict for DART for the same reason. Because our holding on the second point is necessary to the disposition of the first point, we address their second point first.

As a governmental unit, DART was entitled to receive notice of Melvin and Beverly's claim. TEX.CIV.PRAC. & REM.CODE ANN. § 101.101 (Vernon 1986). Section 101.101 provides:

(a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:

(1) the damage or injury claimed;

(2) the time and place of the incident; and

(3) the incident.

* * * * * *

(c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged.

TEX.CIV.PRAC. & REM.CODE ANN. § 101.101. The parties agree that the burden was on Melvin and Beverly as plaintiffs to show that DART received timely formal or actual notice of their claim because DART filed a verified answer specifically denying receipt of either type of notice. It is also undisputed that Melvin and Beverly did not give DART formal notice within the required statutory time period; hence, the controlling question is whether Melvin and Beverly introduced any evidence that DART received actual notice. Melvin and Beverly assert that the property damage to their car, Glen's knowledge of the collision, and the police investigative report comprise ample evidence from which a jury could reasonably infer that DART had actual notice of their claim. DART asserts that, as a matter of law, Melvin and Beverly failed to present any evidence that DART received notice of their injury, and, therefore, the trial court did not commit error in directing a verdict for DART.

Melvin and Beverly first contend that whether DART received actual notice of their claim is an issue of fact to be submitted to the jury. Alvarado v. City of Lubbock, 685 S.W.2d 646, 649 (Tex.1985). In Alvarado, the supreme court did not hold that a trial court could not grant judgment on the issue of actual notice if there was no evidence or insufficient evidence of actual notice to a governmental unit; instead, it articulated the general rule that the existence of a governmental unit's actual notice of a claim is a fact issue. Id. If there is no evidence to show the existence of actual notice, a directed verdict on the issue is proper. Qantel, 761 S.W.2d at 304.

Next, Melvin and Beverly assert that the testimony was clear that Glen was a DART employee, who was driving a DART bus, and that he knew he was in a collision with their car. They maintain that Glen's actual knowledge of the accident should be imputed to DART because Glen was DART's agent or representative and he was engaged in the business of his principal at the time of the accident under circumstances imposing on an agent or representative the reasonable duty of making the facts known to his superior. City of Galveston v. Shu, 607 S.W.2d 942, 945 (Tex.Civ.App.--Houston [1st Dist.] 1980, no writ). We agree that if Glen had a duty to gather facts and report to DART, his knowledge would be imputed to DART. Rosales v. Brazoria County, 764 S.W.2d 342, 345 (Tex.App.--Texarkana 1989, no writ); City of Texarkana v. Nard, 575 S.W.2d 648, 652 (Tex.Civ.App.--Tyler 1978, writ ref'd n.r.e.).

In Shu, the court's holding that the city had actual notice was based upon evidence that an official investigation of the accident was made by employees of the city who had the duty to investigate or report accidents. Shu, 607 S.W.2d at 945-46. In the case at bar, there is no evidence that anyone with the duty to gather facts and report same to DART investigated the accident. Glen's testimony is deficient because there was no evidence that he had a duty to investigate the accident and file a report with DART. There is also no evidence that Glen in fact reported the accident to anyone connected with DART.

Finally, Melvin and Beverly argue that the circumstantial evidence that the Dallas police made an official investigation of the accident amounted to evidence of probative force that DART had actual notice, within the Act, of their claim. Id. at 946. We disagree. In Shu, the court held that an investigation by city police was sufficient to impute actual knowledge to the city, but here there is no evidence that a City of Dallas police officer had a duty to report his findings to DART, a separate unit of government, and there is no evidence that the City of Dallas and DART had an agency relationship with each other. For all of the above reasons, we hold that there was legally insufficient evidence to support submission of a fact question concerning actual notice to the jury. Accordingly, the trial court did not err in directing a verdict for DART. We overrule the second point.

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