Huckaby v. A.G. Perry & Son

Decision Date22 April 1999
Docket NumberNo. 06-98-00056-CV,06-98-00056-CV
Citation20 S.W.3d 194
Parties(Tex.App.-Texarkana 2000) RICK HUCKABY AND JERI BOYD, Appellants v. A. G. PERRY & SON, INC., LESTER DONALD LAMON, AND KATHLEEN ANN JOHNSON, INDEPENDENT EXECUTOR/ADMINISTRATOR OF THE ESTATE OF DONOVAN PAUL JOHNSON, Appellees Date Submitted:
CourtTexas Court of Appeals

On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 96-2454-B

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Before Cornelius, C.J., Grant and Ross, JJ.

O P I N I O N

Opinion by Justice Grant

Rick Huckaby and Jeri Boyd, as the parents of Joshua Huckaby and as the legal representatives of his estate (the Huckabys), appeal from a take-nothing judgment in a wrongful death and survival action. They contend that Joshua Huckaby's death in an automobile accident was caused by the negligence and gross negligence of Lester Lamon and A. G. Perry & Son, Inc. The jury found no negligence. On appeal, the Huckabys contend that

(1)The trial court erred in failing to transfer venue from Gregg County to Montgomery County;

(2)Lamon's negligence and gross negligence by blocking traffic on the southbound lanes of U. S. Highway 59 with his tractor-trailer rig was, as a matter of law, a proximate cause of the accident in question;

(3)Lamon, as a matter of law and from clear and convincing evidence, intentionally, knowingly, or recklessly caused serious bodily injury and death to Joshua Huckaby by the use of the tractor-trailer rig as a deadly weapon;

(4)The jury's failure to find Lamon was negligent, grossly negligent, and intentionally caused the occurrence were against the great weight and preponderance of the evidence so as to be clearly wrong and manifestly unjust;

(5)The trial court erred in not submitting a jury question on negligence per se;

(6)The trial court erred in submitting a jury instruction on sole proximate cause when Lamon's negligence per se, negligence, and gross negligence were proximate causes of the accident in question;

(7)The trial court erred in not finding that Lamon is a vice-principal and statutory employee of A. G. Perry & Son, Inc. and that A. G. Perry & Son, Inc., therefore, is liable for Lamon's negligence and gross negligence which proximately caused the accident in question;

(8)The trial court erred in admitting testimony and exhibits of other accidents at the Patton Village south crossover and other places on U. S. 59; in admitting testimony about acts and omissions of the Texas Department of Transportation, and about highway design, for which it is immune from suit; in allowing unnecessary expert testimony to reconstruct the accident or to establish causation, and expert opinions by unqualified experts; and in not admitting all photographs of the deceased taken immediately after the accident when their bodies were still in the Toyota.

There was evidence showing the following: On November 14, 1996, at dusk, Lester Lamon, using his own tractor unit and pulling a flatbed trailer owned by A. G. Perry & Son, Inc. (Perry), was returning to Lufkin after delivering a load to Tomball Texas. Lamon used State Highway 242 to connect with U. S. 59. Lamon was aware that northbound traffic out of Houston, specifically at this point along U. S. 59 at dusk, was heavy. Lamon testified that as he descended State Highway 242 to reach its intersection with U. S. 59, he could see extremely heavy northbound traffic on U. S. 59. He intended to cross over the southbound lanes of U. S. 59 and turn left into a northbound lane of U.S. 59. Lamon looked to his left, and seeing southbound traffic far off, he pulled his tractor-trailer rig into the crossover between the divided highway. His flatbed trailer, however, protruded back into the southbound lanes, completely blocking the inside lane and part of the outside lane. He sat at the crossover for a bout a minute, possibly a little longer, before a Toyota automobile heading south on U. S. 59, as well as another car which is not a part of this lawsuit, came over a rise at the Peach Creek Bridge and struck the trailer. Both the driver, Donovan Johnson, and the passenger, Jason Huckaby, were killed.

The Huckabys sued Lamon, Perry, and Kathleen Johnson, independent executor/administrator of the estate of Donovan Johnson, in Gregg County, Texas, where Johnson's estate was being administered. Defendants filed a motion to transfer venue to Montgomery County, Texas, the location of the accident. The Huckabys opposed this motion, and the court in Gregg County denied it. At trial, the Huckabys asserted claims against Lamon and Perry for negligence and gross negligence, alleging negligence per se for the violation of a Texas Transportation Code regulation. Lamon and Perry defended on the ground that the intersection in question was an engineering trap due to the acts/omissions of the Texas Department of Transportation and that this was the sole proximate cause of the accident. At the close of the evidence, the court granted Kathleen Johnson's motion for an instructed verdict, which was not appealed. As to the remaining defendants, Lamon and Perry, the court submitted jury questions for negligence and assault with a deadly weapon, but refused to submit a jury instruction for negligence per se. It did, however, include a jury instruction on "sole proximate cause" as part of its general proximate cause instruction. In jury question number one, the jury found that Lamon was not negligent;1 and, in jury question number two, it found that he did not commit assault with a deadly weapon.2 Based on these findings, the court entered a take-nothing judgment.

We first address the Huckabys' challenge to venue. The Huckabys contend that the trial court erred in refusing to transfer venue from Gregg County to Montgomery County, the location of the accident. In the early stages of this case, Lamon and Perry filed a motion to transfer venue to Montgomery County, and the Huckabys filed an amended response which stated: "Defendants [sic] motion to change venue is a prohibited attempt to defeat the dominant jurisdiction of this Court." Further, the Huckabys' second amended petition stated:

II.

All named defendants, in the style of this cause, appear by answer. Venue is proper in this Court because 1) this suit is brought in the county of a defendant natural person's residence at the time the cause(s) of action accrue herein and 2) this suit is against an independent administratrix of an estate, to establish a money demand against said estate, that is properly administered in Gregg County, Texas. And, this Court exercises the dominant jurisdiction over all actions arising from the pertinent events on November 14, 1996, because the first suit arising from said events is filed in this Court.

The San Antonio Court of Appeals recently addressed the issue of waiver of venue in the case of In re S.D., 980 S.W.2d 758 (Tex. App.-San Antonio 1998, writ denied), as follows:

The law in Texas has long been that any party to a lawsuit may expressly or impliedly waive rights conferred upon him by a venue statute. The matter of venue is a personal privilege which may be waived. An express waiver is shown by clear overt acts evidencing an intent to waive, while an implied waiver occurs when a party, often inadvertently, takes some action inconsistent with his position on the venue issue and therefore is held to have waived his rights thereon.

Id. at 759 (citations omitted).

Having opposed Lamon's and Perry's motions for change of venue, the Huckabys cannot now complain of the court's action overruling it. Furthermore, the Huckabys chose the venue when suit was filed and never moved to change the venue. This point of error is overruled.

We next address the Huckabys' legal and factual challenge to the sufficiency of the evidence on the jury's failure to find that Lamon committed negligence that caused the occurrence in question.

To prevail on a legal sufficiency challenge to the evidence supporting a jury's failure to find a particular issue, a party must show that no evidence supports the failure to find and that the evidence conclusively establishes the desired finding as a matter of law.

There was testimony that it was nearly dark at the time of the accident. Lamon was aware that northbound traffic out of Houston was heavy, specifically at this point along U. S. 59 at this time of day, and as he descended State Highway 242 to reach its intersection with U. S. 59, Lamon could actually see "extremely heavy" northbound traffic on U. S. 59. Lamon's vantage point from the cab of the tractor unit was much higher than that of a car, about seventy inches (five feet, ten inches) above the ground. Department of Public Safety Trooper Vicky Edinger testified that at the intersection's stop sign, a driver "should be able to look down the north[bound] lanes [of U. S. 59] and see how heavy traffic is." With regard to southbound traffic, "He should be able to see pretty clear how much the traffic is over there too." Lamon was aware that the tractor-trailer rig he was driving was, in total, at least seventeen-to-twenty-yards long. He was also aware that if he blocked the southbound lanes on U. S. 59 with the trailer, serious bodily injury could easily result. Lamon looked to his left and saw southbound traffic only "far off."3 He then pulled his tractor-trailer rig into the crossover, but he was unable to turn left to head north on U. S. 59 due to northbound traffic. As he sat in the crossover, his flatbed trailer protruded back into the southbound lanes, completely blocking the inside lane and part of the outside lane. He sat in the crossover for about a minute, possibly a little longer, before the Toyota automobile struck the trailer. Lamon explained that he pulled out into the crossover under these conditions because he thought he had time...

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