Harris County v. Dillard

• Decision Date: 12 November 1992
• Docket Number: No. 01-91-00114-CV,01-91-00114-CV
• Citation: 841 S.W.2d 552
• Parties: HARRIS COUNTY, Texas, Appellant, v. Michael Curtis DILLARD, Individually and as next friend of Michael Curtis Dillard, II and Misty Lynn Dillard, Minors, and as Personal Representative of the Estate of Lila Jean Dillard, Deceased, and Stephanie Hunold, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 552

841 S.W.2d 552

HARRIS COUNTY, Texas, Appellant, v. Michael Curtis DILLARD, Individually and as next friend of Michael Curtis Dillard, II and Misty Lynn Dillard, Minors and as Personal Representative of the Estate of Lila Jean Dillard, Deceased, and Stephanie Hunold, Appellees.

No. 01-91-00114-CV.

Court of Appeals of Texas Houston (1st Dist.).

Nov. 12, 1992.

Rehearing Denied Nov. 12, 1992.

Mike Driscoll, Eleanor Robinson, Houston, for appellant.

Merry Miller, Houston, for appellees.

Before DUGGAN, COHEN and PRICE, JJ.

OPINION ON MOTION FOR REHEARING

PRICE, Justice. ¹

We withdraw our earlier opinion, we substitute the following opinion in its stead, and we overrule appellant's motion for rehearing.

Harris County appeals a jury verdict finding that James Earl Skeen, a former Harris County reserve deputy sheriff, was acting in the scope of his employment when he caused a fatal automobile crash. In seven points of error, Harris County asserts error because its motion for summary judgment was overruled, its jury charge definitions were overruled, and there was no evidence or insufficient evidence to support the jury's verdict that Skeen was acting in the scope of his employment. We affirm.

On August 3, 1986, at approximately 1:30 a.m., James Earl Skeen was taking his female companion, Terry Howell, to her home. Skeen and Howell had spent the previous three hours at Tejas Tavern and had consumed two pitchers of beer. Each pitcher was equivalent to about five cans of beer. As Skeen entered Spencer Highway he saw a car "coming up on me at a very high rate of speed." Skeen felt something was wrong and thought the driver was unsafe and needed to be taken off the road.

Skeen, a Harris County reserve deputy sheriff, put himself on duty, and sped up to get the license plate number of the vehicle. While in pursuit, Skeen reached down to turn on his two-way radio so he could tell Communications Central he had placed himself on duty and was in pursuit of a vehicle. Skeen further intended to give the license plate number and request that Pasadena police stop the vehicle. As Skeen reached down to grab the microphone, he saw a car in the left turn lane in front of him. He was within "pin needles of slamming into the car making the left," and "yanked the wheel to the right" to avoid that car. Skeen drove off the road into a "little bar ditch." He was able to drive back out of the ditch, but, when he hit the roadway, his car went into a spin, crossed four lanes of traffic, and crashed head-on into an oncoming vehicle.

Stephanie Hunold was driving that vehicle. She was seriously injured. Her passenger, Lila Jean Dillard, was killed. Skeen was given an intoxilyzer test approximately one and one-half hours after the accident occurred. The test showed Skeen's blood alcohol level at .15 percent.

Skeen was convicted of involuntary manslaughter. In the instant civil suit, co-defendant, Tejas Tavern, settled for $430,000, and the uninsured motorist carrier settled for an unspecified amount before trial.

In point of error one, Harris County asserts the trial court erred in overruling its motion for summary judgment since it was immune from suit. This issue is moot. When a party who has moved unsuccessfully for summary judgment subsequently loses in a conventional trial on the merits, the order overruling the motion is not reviewable on appeal. Ferguson v. Kelly, 728 S.W.2d 397, 398 (Tex.App.--Beaumont 1987, no writ).

Point of error one is overruled.

In point of error three, Harris County asserts the trial court erred in overruling its motions for instructed and directed verdict. It argues there was no evidence to show Skeen was in the course and scope of employment with Harris County at the time of the accident.

At the close of the plaintiff's case, Harris County moved for an instructed verdict on the basis that no evidence was introduced to show Skeen was within the course and scope of employment with Harris County at the time of the accident, and, if anything, the evidence showed Skeen had committed an intentional act for which Harris County could not be liable. The trial court denied the motion. After both parties had rested, Harris County moved for a directed verdict on the dual bases that it was not given proper notice of the incident, and that Skeen committed an intentional act for which Harris County was immune. The trial court denied the motion.

The courts of this state have repeatedly held that it is error to instruct a verdict when the evidence raises any material fact issue. Texas Employers Ins. Ass'n v. Page, 553 S.W.2d 98, 100 (Tex.1977). In passing upon the question of the trial court's authority to instruct a verdict, the evidence must be considered in the light most favorable to the party against whom the verdict is instructed. Id. Where there is any conflicting evidence in the record of probative nature, a determination of the issue is for the jury. Id.

As will be discussed herein, the evidence showed Skeen responded in the manner he was trained to respond as a Harris County reserve deputy sheriff, that Skeen reported the accident to his immediate superior who relayed the report to the Harris County Sheriff's Department, and that Skeen did not act intentionally in causing the accident. Since there was conflicting evidence in the record of probative nature, the trial court did not err in overruling Harris County's motions for instructed and directed verdict.

Point of error three is overruled.

In points of error two and seven, Harris County asserts the trial court erred in overruling its objections to the definitions in the jury charge for "employee," "intentional act," "reckless," and "grossly negligent."

Under rule 277 of the Texas Rules of Civil Procedure, the court shall submit those instructions and definitions necessary for the jury to properly render a verdict. In implementing this rule, trial courts have wide discretion. See Mobil Chemical Co. v. Bell, 517 S.W.2d 245, 256 (Tex.1974). The standard of review for a trial court's instruction to the jury is that an error on instructing or failing to instruct must have caused, or can be reasonably calculated to have caused, the rendition of an improper verdict. See, e.g., Gulf Coast State Bank v. Emenhiser, 562 S.W.2d 449, 453-59 (Tex.1978); TEX.R.APP.P. 81(b)(1);

In point of error two, Harris County complains the trial court erred in overruling its objection to the definition of "employee" in question three. Appellees counter Harris County waived its objection because it made only a general objection and requested a substitution.

Question three read:

On the occasion in question, was James Earl Skeen acting as an employee of Harris County within the scope of his employment?

You are instructed that "employee" includes an officer, volunteer or employee, a former officer, volunteer or employee, and the estate of an officer, volunteer or employee, or former officer, volunteer or employee of a local government.

(Emphasis added.)

Harris County objected to the definition and requested that the trial court substitute the definition from the Texas Tort Claims Act, TEX.CIV.PRAC. & REM.CODE ANN. § 101.001(1) (Vernon Supp.1992):

"Employee" means a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.

(Emphasis added.)

An objection to the charge or a portion of the charge must point out specifically the objectionable matter and the grounds of the objection; otherwise the complaint is waived. Davis v. Campbell, 572 S.W.2d 660, 663 (Tex.1978); TEX.R.CIV.P. 274. The purpose is to allow the trial court an opportunity to correct its mistake.

In this instance, Harris County explained that its primary objection to the proposed definition was the inclusion of the term "volunteer" in the definition of employee. This explanation afforded the trial court an opportunity to correct any error by the inclusion of "volunteer" in the definition and preserved any such error for appeal.

We next consider whether the trial court erred in including the term "volunteer" in the definition of employee.

Under the Tort Claims Act, a governmental unit in the state is liable for personal injury and death caused by the use of an automobile if the governmental unit would, "were it a private person, be liable to the claimant according to Texas law." In El Paso Laundry Co. v. Gonzales, 36 S.W.2d 793 (Tex.Civ.App.--El Paso 1931, writ dism'd), a volunteer worker in a private business was held to have the same status as an employee. In Smith v. The University of Texas, 664 S.W.2d 180 (Tex.App.--Austin 1984, writ ref'd n.r.e.), the appellate court adopted the reasoning in El Paso Laundry to determine when a volunteer worker will have the same status as an employee under the Texas Tort Claims Act. Private liability, and therefore liability under the Texas Tort Claims Act, is found whenever the governmental unit:

1. Has a right to direct the duties of the volunteer;

2. Has an interest in the work to be accomplished;

3. Accepts direct or incidental benefit derived from the volunteer's work; and 4. Has a right to fire or replace a volunteer.

Smith, 664 S.W.2d at 190-91.

In Smith, the appellate court reversed a summary judgment in favor of a governmental entity alleging immunity from a suit based on the actions of a volunteer. The volunteer was appointed by a head track coach to be the presiding official for a shot-put event. The volunteer official had the authority to direct contestants and to designate the areas to be used for practice and the event itself. The plaintiff sued the university alleging he was injured as a result of the volunteer's negligence during the event. The court of appeals in...