Hughes Drilling Fluids, Inc., Div. of Hughes Tool Co. v. Eubanks

• Decision Date: 11 December 1986
• Docket Number: No. B14-85-716CV,B14-85-716CV
• Citation: 729 S.W.2d 759
• Parties: HUGHES DRILLING FLUIDS, INC., A DIVISION OF HUGHES TOOL COMPANY, et al., Appellants, v. Donald R. EUBANKS, et al., Appellees. Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 759

729 S.W.2d 759

HUGHES DRILLING FLUIDS, INC., A DIVISION OF HUGHES TOOL COMPANY, et al., Appellants, v. Donald R. EUBANKS, et al., Appellees.

No. B14-85-716CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Dec. 11, 1986.

Rehearings Denied March 19 and

April 16, 1987.

Michael P. Jung, Dallas, Gordon A. Holloway, William B. Allison, Houston, for appellants.

Joseph D. Jamail, Janet Evans, W. James Kronzer, Houston, for appellees.

Before PAUL PRESSLER, SEARS and CANNON, JJ.

OPINION

CANNON, Justice.

Hughes Tool Company and Hughes Drilling Fluids, Inc., a division of Hughes Tool Company, (appellants) appeal from a judgment for $6,707,780 rendered against them in a personal injury suit. In six points of error appellants challenge the trial court's refusal to submit special issues on intoxication; its submission of special issues on damages for plaintiff Donald Eubanks' two young sons; its overruling of appellants' motion for new trial based on newly discovered evidence; its refusal to admit certain testimony of the investigating officer; and its refusal to admit evidence of other accidents at the scene in question. In addition, appellants assert that the evidence supporting some of the jury findings is factually insufficient. We find error in the award of damages to Eric and Sean Eubanks and modify the judgment to delete those damages. We affirm the judgment as modified.

On December 30, 1982, Donald Eubanks was working for his father, clearing land on a ranch between Dayton and Liberty. At the end of the day he and his father shared a pre-New Year's Eve drink, and he then left for home. He stopped in Dayton to buy beer and drank two and part of a third while continuing home. Near the intersection of Highway 90 and Crosby-Dayton Road in eastern Harris County, Eubanks allegedly was forced off the road by a truck owned and operated by appellants. He lost control of his vehicle, went into a ditch and turned over several times. He suffered severe injuries, resulting in paraplegia. The truck did not stop. Eubanks' suit against appellants was tried to a jury, which found that a driver of a Hughes Drilling Fluids truck committed certain negligent acts and that such negligence was a proximate cause of the accident. The jury further found that Eubanks was not negligent in his control of the truck, application of the brakes and lookout.

In their first point of error, appellants assert that the trial court erred in refusing to submit special issues inquiring whether Eubanks was operating his vehicle while under the influence of intoxicating liquor and, if so, whether such action was a proximate cause of the incident. In support of this argument, appellants rely on the rule in Murray v. O & A Express, Inc., 630 S.W.2d 633 (Tex.1982): "The unexcused violation of a penal statute constitutes negligence as a matter of law if such statute was designed to prevent injuries to a class of persons to which the injured party belongs." Id. at 636. Appellants argue that the evidence admitted at trial conclusively established that Eubanks was drunk at the time of the accident and, therefore, in violation of the driving while intoxicated statute. Act of June 13, 1979, ch. 682, § 3, 1979 Tex.Gen.Laws 1608, 1609, amended by Act of June 16, 1983, ch. 303, § 3, 1983 Tex.Gen.Laws 1568, 1574-77. Further, as this statute is obviously a highway safety measure and is designed to prevent the type of injury sustained by Eubanks, his violation of this statute must be considered negligence per se. Thus, appellants conclude, the court below should have allowed their special issues on the matter of intoxication and proximate cause. We are not persuaded by their arguments.

Appellants concede that their application of the Murray rule to the present fact situation has not been accepted by all Texas courts. While several Texas courts of appeal have agreed with appellants' argument, other courts have held that driving while intoxicated is not negligence per se; instead, they regard intoxication as an evidentiary matter to be considered by the jury when making its ultimate determination of the negligence of the party.

Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951), is often cited as authority in those cases which view intoxication as an evidentiary issue. Appellants argue that Benoit is inapplicable because it is neither a negligence per se nor a driving while intoxicated case. We note, however, that Benoit does contain relevant language:

Evidence of intoxication, standing alone, does not establish negligence or proximate cause. There must be evidence of other misconduct sufficient to establish, by a preponderance of the evidence, that the person was guilty of performing some act, or failing to perform some act, which an ordinarily prudent person would have performed.... Evidence of intoxication is an evidentiary fact to be considered by the jury, or trier of the facts, in determining whether or not a person is guilty of some act of contributory negligence, but the fact of intoxication alone would not convict the deceased of negligence.

Id. at 798.

In most of the cases cited by appellants in support of their negligence per se argument, there was evidence of other negligent conduct in addition to the conduct of driving while intoxicated. ¹ Thus, there was some contributing factor which, in combination with the intoxication, caused the party to be "at fault."

Here, we find no evidence in the record which indicates that any act by Eubanks, regardless of his alleged intoxication, contributed to cause the accident and his resulting injuries. Witness Harold Hart, sitting in his van at the intersection, stated that Eubanks was neither speeding nor driving erratically and had his truck in his own lane. Another witness, Jim Bond, following Eubanks on the highway, also testified that Eubanks was not speeding and did nothing improper to cause the accident. Both men testified, and the jury so found, that the Hughes truck's move over the center line into Eubank's half of the road was the precipitating factor. No one seriously contended that Eubanks' turn to the right to avoid the truck was improper conduct. In summary, there was no evidence to indicate that Eubanks' driving was affected by his drinking.

While we recognize that drinking and driving is not to be condoned, we decline adoption of a hard and fast rule which holds that one who drinks and is involved in an accident is to be held negligent per se. See 31 Texas L.Rev. 592 (1953) (discussing the method of submitting intoxication to a jury). Such a rule would be inequitable in a situation like this one where there is no evidence that any act by Eubanks, notwithstanding his alleged intoxication, contributed to cause his accident and resulting injuries. Point of error one is overruled.

In point of error two, appellants argue that the trial court erred in submitting special issues inquiring as to the damages of Eric and Sean Eubanks because (i) as a matter of law, neither is entitled to a recovery of damages in this case, and (ii) even if they were so entitled, the special issues incorrectly state the elements of damages to which they would be entitled. Eric and Sean Eubanks are the minor sons of Donald Eubanks. In Special Issues Nos. 10 and 11, the jury was asked to consider the following elements of damages in awarding them compensation: loss of father's care, maintenance, support, services, education, advice and counsel both in the past and future.

Appellants state that under present Texas law, Eric and Sean do not have an independent action against a third party tortfeasor for loss of parental consortium. Appellees, on the other hand, urge this court to recognize such a cause of action in accord with recent Supreme Court decisions recognizing spousal consortium and allowing recovery under the wrongful death statute for loss of companionship and mental anguish for the death of a minor child or parent. Whittlesey v. Miller, 572 S.W.2d 665 (Tex.1978); Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983); Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex.1985).

Two appellate courts have recently denied recovery because causes of action for loss of parental consortium and/or loss of the companionship of a child are not allowed under the laws of this state. Bennight v. Western Auto Supply Co., 670 S.W.2d 373, 379 (Tex.App.--Austin 1984, writ ref'd n.r.e.); Jannette v. Deprez, 701 S.W.2d 56, 61 (Tex.App.--Dallas 1985, writ ref'd n.r.e.). The Bennight court admitted that theirs was a difficult conclusion to reach but pointed out that a cause of action for loss of parental consortium "would require the adjustment of several established legal principles." Moreover, the court stated that it is not an intermediate appellate court's role to create a new cause of action. Consequently, the court chose to leave the decision to the legislature or the Supreme Court. Bennight, 670 S.W.2d at 379-80.

This court is not compelled to follow Bennight and Jannette. However, we too feel the decision to extend the right of recovery in these cases lies with the legislature or the Supreme Court. Until one or the other body mandates a cause of action for loss of parental consortium, we adhere to the present law, which allows no such recovery. Therefore, the award of damages to appellees is reformed to delete the $1,000,000 award ($500,000 to each) to Eric and Sean Eubanks.

In view of this ruling, we do not discuss appellants' argument regarding the wording of Special Issues Nos. 10 and 11.

Appellants next find error in the trial court's overruling of their motion for new trial based on newly discovered evidence. Appellants argue this evidence was concealed until after the trial and the entry of judgment. After the trial they received information through an anonymous telephone call that Donald Eubanks had relatives living in Harris County whom he had not named in reply to deposition questions. Two...