Hanna v. Lott

• Decision Date: 31 October 1994
• Docket Number: No. 12-93-00045-CV,12-93-00045-CV
• Parties: Robert HANNA, Don W. Bevel & Luther Hanna Sanitation, Inc., Appellants, v. Andrew LOTT & Stephen Lott & As Next Friend Mic-Talford Lott & Monique Lott, Appellees.
• Court: Texas Court of Appeals

Page 132

888 S.W.2d 132

Robert HANNA, Don W. Bevel & Luther Hanna Sanitation, Inc., Appellants, v. Andrew LOTT & Stephen Lott & As Next Friend Mic-Talford Lott & Monique Lott, Appellees.

No. 12-93-00045-CV.

Court of Appeals of Texas,

Tyler.

Oct. 31, 1994.

Gregory Neeley, Longview, for appellants.

Preston McGee and Michael E. Starr, Tyler, for appellees.

RAMEY, Chief Justice.

This appeal is from a judgment awarding damages resulting from a traffic accident. Appellants Robert Hanna ("Robert"), Don W. Bevel ("Bevel"), and Luther Hanna Sanitation, Inc. ("LHS"), (collectively, "Appellants"), were sued by Appellees Andrew Lott ("Andrew"), Stephen Lott, Mic-Talford Lott, and Monique Lott (collectively, "Lott") after a garbage truck owned by LHS collided with a vehicle driven by Andrew, in which the minor plaintiffs, Mic-Talford and Monique Lott, were passengers. After trial, the court entered judgment based on the jury's findings that each individual defendant was grossly negligent, awarding $30,706.00 in compensatory damages and $22,500.00 in exemplary damages, plus costs and interest. We will affirm the judgment with respect to Stephen, Mic-Talford and Monique Lott, and reverse and remand the judgment as to Andrew Lott.

The collision occurred on the morning of July 11, 1991 when a garbage truck driver failed to maintain a proper look-out while making a left turn. It resulted in the total loss of Andrew Lott's car and injuries to the minors; the garbage truck and its occupants were apparently not significantly damaged. Though Bevel initially identified himself as the driver of the vehicle, there was also evidence that Robert, who was related to the owners of LHS as well as Bevel, was driving at the time of the incident. When the accident occurred, Robert's driver's license was suspended because of a Driving While Intoxicated conviction. Appellants do not contest the finding that the ordinary negligence of the driver of the garbage truck was a proximate cause of the occurrence. Rather, their eight points of error question the admissibility of the testimony of a witness, the propriety of the negligent entrustment finding against LHS, the findings of gross negligence, and certain aspects of the damages awarded.

In their first point of error, Appellants assert that the trial court erred in allowing Lott to call Reba Hanna ("Reba") as a witness. Reba was president and treasurer of LHS, as well as its corporate representative at trial, but she had not been identified in Lott's interrogatory answers as a person with knowledge of relevant facts. TEX.R.CIV.P. 215(5) provides that

A party who fails to respond to ... a request for discovery shall not be entitled to present evidence which the party was under a duty to provide ... or to offer the testimony of ... any ... person having sufficient knowledge of discoverable matter, unless the trial court finds that good cause sufficient to require admission exists.

The application of this rule has been much disputed. In summary, it can be said that

Rule 215(5) mandates that a party who fails to respond to or supplement his response to a request for discovery shall not be entitled to present that evidence unless the trial court finds that good cause sufficient to require admission exists. TEX.R.CIV.P. 215(5) (Vernon Supp.1992). The sanction is automatic unless good cause is shown. Stiles v. Royal Ins. Co. of America, 798 S.W.2d 591, 594 (Tex.App.--Dallas 1990, writ denied). The Texas Supreme Court has consistently held that "good cause" for purposes of Rule 215(5) is designed to prevent trial by ambush, and not to create a trap for the unwary. Smith v. Southwest Feed Yards, 835 S.W.2d 89, 91 (Tex.1992). Good cause allowing testimony of a party witness may exist when the witness' identity is certain and when his or her personal knowledge of relevant facts has been communicated to all other parties. Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 162 (Tex.1992).

Stern v. State ex rel. Ansel, 869 S.W.2d 614, 627-28 (Tex.App.--Houston [14th Dist.] 1994, writ denied).

The Texas courts of appeal have not been in agreement on the admissibility of the testimony of an individual called as an adverse party when not identified by the calling party as one having knowledge of relevant facts. The Fort Worth and El Paso courts have held that in the absence of a finding of good cause as required by Rule 215(5), it was error for the trial court to admit the testimony of the unidentified party called by his adversary. Varner v. Howe, 860 S.W.2d 458, 465 (Tex.App.--El Paso 1993, no writ); Brekalo v. Ballard, 836 S.W.2d 783, 785 (Tex.App.--Fort Worth 1992, no writ). The Texarkana and Houston First courts have reached the opposite result, emphasizing the adverse party relationship, as did the trial court in the appeal before us. E-Z Mart Stores, Inc. v. Terry, 794 S.W.2d 63, 65 (Tex.App.--Texarkana 1990, writ denied); Weng Enterprises v. Embassy World Travel, 837 S.W.2d 217, 221 (Tex.App.--Houston [1st Dist.] 1992, no writ); National Union Fire Ins. Co. v. Wyar, 821 S.W.2d 291, 293 (Tex.App.--Houston [1st Dist.] 1991, no writ).

Our supreme court has carved out an exception to the automatic exclusion rule in the closely related circumstance in which a party, not having identified himself as one having knowledge of pertinent facts, undertakes to call himself to testify. Smith v. Southwest Feed Yards, 835 S.W.2d 89, 90 (Tex.1992); Rogers v. Stell, 835 S.W.2d 100, 101 (Tex.1992); Henry S. Miller Company v. Bynum, 836 S.W.2d 160, 162 (Tex.1992).

Reba was shown to be the person in charge of the operations of LHS, and she therefore qualified as a party for the purposes of Rule 215. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985). The supreme court has taught in the exception cases that the factors to be weighed in determining good cause were whether the party called had been deposed and whether her knowledge of relevant facts had been communicated through her responses to discovery; these factors were satisfied here. ¹ It is not essential that the trial court have conducted a specific hearing on the existence of good cause for the failure to designate the party as a person with the requisite knowledge. Smith, 835 S.W.2d at 90-92. Under the posture of this case, the Appellants, who objected to Reba's being called to testify as an adverse party, were patently cognizant that she had knowledge of relevant facts. We are persuaded that this appeal's similarity to the supreme court's exception cases as well as the satisfaction of the prescribed factors to be considered requires us to conclude that the trial court did not abuse its discretion in permitting Reba to testify. Appellants' first point of error is overruled.

In their second point of error Appellants maintain that there was no evidence of negligent entrustment of its truck by LHS to the vehicle's driver. When a "no evidence" point is raised by a party that does not have the burden of proof on the issue,

we must examine the record in the light most favorable to the finding to determine if there is any probative evidence, or reasonable inferences therefrom, which supports the finding, and we must disregard all evidence or reasonable inferences therefrom to the contrary. Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 276 (Tex.App.--Amarillo 1988, writ denied). If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld. In re King's Estate, 150 Tex. 662, 664, 244 S.W.2d 660, 661 (1951).

Matter of Marriage of DeVine, 869 S.W.2d 415, 420 (Tex.App.--Amarillo 1993, no writ).

The elements of negligent entrustment of a vehicle are:

1) entrustment of a vehicle by the owner;

2) to an unlicensed, incompetent, or reckless driver;

3) that the owner knew or should have known to be unlicensed, incompetent, or reckless;

4) that the driver was negligent on the occasion in question; and

5) that the driver's negligence proximately caused the accident.

Williams v. Steves Industries, Inc., 699 S.W.2d 570, 571 (Tex.1985). Appellants concede in their brief that there was evidence of all but the first and second elements of negligent entrustment. They dispute, however, that any evidence supported a finding that the vehicle was entrusted to Robert by LHS. Reba repeatedly denied ever having given Robert permission to drive, insisting that Robert was employed by LHS as a helper, not a driver. Reba also testified that she saw Bevel driving the garbage truck when it exited LHS' place of business on the morning of the accident.

"It is a general rule that an agent's authority is presumed to be coextensive with the business entrusted to him." Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 837 (Tex.App.--Amarillo 1993, writ denied). The only evidence was that Bevel was the assigned truck driver for LHS. In keeping with the evidence that Robert was the driver at the time of the collision, the jury's finding of LHS's negligent entrustment can be supported by the rational inference that, at some time after the truck left the yard, Bevel, while acting in the course and scope of his employment, permitted Robert to drive it. Bevel, Reba, and Robert were all related, and LHS was a small, informal, family owned-and-operated business. The garbage truck operated with a two-man "crew", and if, as Robert testified, the driver sometimes worked as a helper, the jury could have rationally concluded that the driver at least had the authority to allow the helper to drive, and, on this occasion, had done so.

Furthermore, the jury might simply have not believed Reba's testimony that Bevel was driving when the truck left the yard, just as it obviously did not believe the testimony of Robert and Bevel that Bevel was driving at the time of the accident. This accident occurred only a few miles from the yard, shortly after Robert and Bevel left for the morning run. At the time...